Torts New Questions

TORTS QUESTIONS

625

1. The manufacturer made a product known as Delphi's Follicle, which was sold over the counter for the treatment of dandruff and dry scalp conditions. A doctor purchased a bottle of Delphi's Follicle at a drugstore. A statement on the label read, "This product will not harm nor-mal scalp or hair." The doctor used the product as directed. Because of a rare scalp condition making him allergic to one of the ingredients, the product irritated his scalp, causing him much pain and discomfort. In an action for neg-ligence by the doctor against the manufacturer, which of the following additional facts or infer-ences, if it was the only one true, would be most effective in the manufacturer's defense?

(A) The doctor did not read the statement on the label.

(B) The reasonable person in the manufactur-er's position would not have foreseen that the product would injure persons with the d'octor's allergy.

(C) The product was manufactured for the manufacturer by another company.

(D) The manufacturer was unaware that an allergy existed like that suffered by the doctor.

2. The defendant lived in a neighborhood in which the incidence of violent crime had been increas-ing. The plaintiff and the defendant were having tea together in the defendant's kitchen when there was a knock at the door of the defendant's home. Although the door was equipped with a peephole that would have enabled the defendant to see who was outside before opening, the defendant opened the door without looking. As soon as the door was opened, an armed robber entered with a gun. The robber struck the plain-tiff several times with the barrel of his pistol before robbing her of her money and leaving. The plaintiff subsequently asserted a negligence claim against the defendant for injuries resulting

from the attack, alleging that it was negligent for the defendant to open the door without looking to see who was there.

Which of the following additional facts, if it was the only one true, would be most helpful to the plaintiff's claim against the defendant?

(A) The defendant was aware of the high inci-dence of crime in the neighborhood.

(B) The plaintiff was aware of the high inci-dence of crime in the neighborhood.

(C) The defendant had invited the plaintiff for tea because she hoped to sell the plaintiff her used living room furniture.

(D) One of the defendant's neighbors had been robbed and attacked by the robber in a similar manner the previous day.

3. A farmer had been living on the family farm most of his life. Because he was ready to retire, he advertised his farm for sale. A developer had been secretly advised by a friend in the state highway department that a major highway would soon be built adjacent to the farmer's land. Knowing that this would increase the value of the property, the developer contacted the farmer and offered to purchase the farm. The developer said that she would be willing to pay the fair market value as determined by any licensed real estate appraiser selected by the farmer. The farmer hired a licensed real estate appraiser who determined the fair market value to be $400,000. The developer purchased the land, paying that price.

Three weeks after the closing of title, the state announced plans to build a highway adjacent to the land. This announcement increased the value of the land to $4,000,000. If the farmer institutes an action for misrepresentation against the developer, the court should find for

626 FINZ MULTISTATE METHOD

(A) the developer, if the farmer knew her to be a real estate investor.

(B) the developer, because she allowed the farmer's appraiser to determine the fair market value of the land.

(C) the farmer, because the developer's failure to disclose the coming of the highway was a breach of a fiduciary obligation.

(D) the farmer, if the developer had an obliga-tion to disclose that the state would be building a highway adjacent to the land.

4. A woman was injured when a robber shot her with a pistol manufactured by the gun maker. She asserted a claim against the gun maker, alleging that the pistol with which she had been shot was meant to be sold for a price under $50. Which of the following arguments is most likely to lead to a judgment for the woman?

(A) The gun maker is vicariously liable for battery, since it was foreseeable that a purchaser of the pistol would shoot another person with it.

(B) The gun maker breached an implied war-ranty that the gun was merchantable, since a pistol that is meant to be sold for under $50 is unfit for ordinary use.

(C) The gun maker is liable for negligence, since the criminal law is designed to pro-tect persons like the woman from becom-ing the victims of robbers.

(D) The gun maker is liable for negligence, since the low selling price of the pistol made it foreseeable that it would be used in connection with a crime.

5. A man was already intoxicated when he entered the bartender's tavern. At first, the bartender refused to serve him any more alcohol. The man insisted, however, and at his insistence, the bartender served him three more drinks. When the man left the bar, he was unable to start his car. He asked a dentist, who was driving by, to assist him. The dentist, who realized that the man was drunk, determined that the man's battery was weak and started the man's car by connecting a cable to her own battery. Later,

while driving, the man struck a pedestrian who was walking across the street.

The pedestrian asserted a claim for his personal injuries against the dentist. Which one of the following facts or inferences, if it was the only one true, would provide the dentist with the most effective defense?

(A) The state had a statute making a barkeeper liable for damage done by a person who purchased alcohol from the barkeeper after already being intoxicated.

(B) The dentist was in the business of render-ing road service to motorists having trouble with their cars.

(C) The man drove 200 miles before striking the pedestrian.

(D) The man would not have struck the pedes-trian if he had not been intoxicated.

6. The driver was driving down Main Street at an unreasonably fast rate of speed when, as a result, he collided with a hunter's car that was standing unattended against the curb. The impact caused a loaded rifle that the hunter had left in the back seat of the car to fire. The bullet went through the car window and traveled four blocks before striking a painter, who was leav-ing a paint factory after work. Although the painter had lost the sight in his left eye in an accident that occurred when he was a child, he was employed by the paint factory as a color coordinator. As a result of his being struck by the bullet from the hunter's rifle, the painter lost the sight in his right eye. This rendered him totally blind, causing him to lose his job. The painter subsequently asserted a negligence claim against the driver, alleging permanent loss of earning capacity in addition to other items of damage.

Which of the following is the driver's most effective argument in defense against the paint-er's claim for permanent loss of earning capac-ity?

(A) The painter was a super-sensitive plaintiff, since he was already blind in one eye.

TORTS QUESTIONS 627

(B) The hunter acted unreasonably by leaving a loaded rifle in the back seat of his car.

(C) The painter was outside the foreseeable zone of danger.

(D) The reasonable person would not have expected that the driver's conduct would cause any person to be rendered blind.

7. A burglar broke into the grocer's grocery store in the middle of the night. After stealing all the money that was in the cash register, she blew open the door of the safe with nitroglycerin and stole its contents as well. Then, as she was leaving, she stole a six-pack of Three Star Beer. Because of poor quality control at the Three Star brewery where it was made, the beer con-tained a toxic ingredient. Later that night, the burglar drank three cans of the beer and was made seriously ill by the toxic ingredient that it contained. In an action by the burglar against Three Star, the court will most likely find for

(A) the burglar, if her injury was proximately caused by the negligence of Three Star.

(B) the burglar, since Three Star breached an express warranty.

(C) Three Star, since the burglar does not come into court with "clean hands."

(D) Three Star, if the burglar's theft of the beer is regarded as unforeseeable.

8. A movie studio was filming part of a motion picture at a large residential apartment building with the permission of the building owner. To avoid interference by curious onlookers, the movie studio's security agents set up a com-mand post in the lobby of the building. No per-sons were allowed to enter the building without identifying themselves and explaining their rea-sons for being there. A fisherman, who lived in an apartment in the building, was returning from a fishing trip late one night. Unaware of the movie studio's activities, he was stopped by the movie studio employees as he attempted to enter. Because he was not carrying identifica-tion, the fisherman was unable to establish his identity. For this reason, the employees refused to allow him to enter. After trying unsuccess-

fully to convince them that he lived there, the fisherman stayed with his sister, who lived a block away. The following morning, he con-tacted the building owner, who spoke to the movie studio officials and arranged to have them allow the fisherman to enter.

If the fisherman asserts a claim against the movie studio for false imprisonment, which of the following would be the movie studio's most effective argument in defense?

(A) The movie studio employees did not know that the fisherman was entitled to enter the building.

(B) The conduct of the movie studio employ-ees was not unreasonable.

(C) The fisherman was not imprisoned.

(D) The fisherman sustained no damage as a result of the conduct of the movie studio employees.

9. A handyman, who owned an appliance repair shop, was at a cocktail party when he saw one of his competitors. Approaching the competitor, the handyman said, "I'm glad to run into you. I was hoping that we could discuss the possibility of going into partnership instead of competing with each other." The competitor responded, "I wouldn't go into business with you because you're the most incompetent person I've ever known." A customer of the handyman's over-heard the conversation. As a result, the follow-ing day the customer cancelled a contract that he had with the handyman.

If the handyman asserts a claim against the competitor for defamation, the handyman will be successful if

(A) the competitor knew or should have known that the statement was defamatory when he made it.

(B) the competitor knew or should have known that the statement was false when he made it.


(C) the competitor knew or should have known that the statement would be overheard when he made it.

(D) the competitor knew or should have known that harm would result from the statement.

10. A farmer owned 500 acres of land on which she grew wheat. By a valid written contract, she agreed to deliver all her wheat to a bread company to be used by that company in the production of bread for sale to the general public. While harvesting the crop, she realized that a blade on her harvesting machine was broken and that fine slivers of metal were becoming mixed with the wheat. She said nothing about this when she delivered the wheat to the bread company since she knew that the bread company ordinarily cleaned its wheat before using it. The harvesting machine had been manufactured and sold by a tractor company.

The bread company used the wheat that it pur-chased from the fanner to manufacture a loaf of bread that it sold to a deli owner who oper-ated a sandwich shop. The deli owner used the bread to make a sandwich. Because the bread contained slivers of the blade from the farm-er's harvesting machine, a bike messenger lacerated the lining of his throat when he swallowed a bite of the sandwich.

Which of the following additional facts or inferences, if it was the only one true, would be most helpful to the farmer in defense against an action brought by the bike messen-ger on a theory of strict liability in tort?

(A) If the bread company acted reasonably, the slivers of metal would have been removed from the wheat before it was baked into bread.

(B) The sandwich that contained the slivers of metal had been purchased by one of the bike messenger's coworkers, who gave it to the bike messenger after changing his mind about eating it.

(C) The bread company made substantial changes to the wheat.

(D) The blade on the farmer's harvesting machine was defective when she pur-chased it from the tractor company.

11. The plaintiff and the defendant were drinking at the same bar when the plaintiff began insulting the defendant by calling him names that were ethnically offensive. When they started to argue with each other, the bartender asked them both to leave. The plaintiff got into his car and drove away. Angry, the defendant began chasing him in his own car. When he caught up with the plaintiff, the defendant began passing the plaintiff's car on the left. As he did so, he swerved his car toward the plaintiff's for the purpose of frightening the plaintiff. The plaintiff did not know that the car swerving toward him was the defendant's, but he became frightened that it would hit him and steered away from it, striking a fire hydrant and sustaining injury.

If the plaintiff institutes an action against the defendant, a court should hold the defendant liable for

(A) battery only.

(B) assault only.

(C) both battery and assault.

(D) neither battery nor assault.

12. The buyer was interested in purchasing the seller's house. Because the buyer knew that some of the houses in the area were infested with termites, he asked the seller whether there were any termites in his house. The seller said that there were none, believing this statement to be true. The buyer purchased the house from the seller and moved into it. Three months later, the buyer discovered that the framework of the house had been damaged by termites, and that the termites had been dam-aging the framework for several years. He sub-sequently asserted a claim against the seller on a theory of negligent misrepresentation.

TORTS QUESTIONS 629

Which of the following is the seller's most effective argument in defense against the buy-er's claim?

(A) The seller did not know that there were termites in the house.

(B) The seller had no duty to tell the buyer whether there were termites in the house.

(C) The seller's statement that there were no termites in the house was an expression of opinion.

(D) The seller's belief that there were no ter-mites in the house was reasonable.

13. The plaintiff purchased a box labeled "Generic Breakfast Cereal" from Riteway Supermarket. While he was eating it, he broke a tooth on a stone that the product contained. The product sold by Riteway and labeled "Generic Break- fast Cereal" is furnished by three different companies: Acme, Birdco, and Cullen. Each sells an approximately equal quantity to Rite-way. In addition, all package their product in identical wrappers, so that it is impossible to tell which of them furnished any given box of breakfast cereal. Although the companies compete with each other, at Riteway's request, they worked together to design the product wrapper.

If the plaintiff is successful in an action for damages against Riteway, it will probably be because

(A) Riteway, Acme, Birdco, and Cullen were involved in a concerted action in the manufacture and marketing of the prod-uct.

(B) Riteway, Acme, Birdco, and Cullen estab-lished standards on an industry-wide basis, which standards made identifica-tion of the product's manufacturer impossible.

(C) the negligence of either Acme, Birdco, or Cullen resulted in harm to the plaintiff under circumstances such that it was impossible to tell which of them caused

the harm, and Riteway is vicariously liable for that negligence.

(D) either Acme, Birdco, or Cullen manufac-tured a defective product, and Riteway sold that product while it was in a defective condition.

14. A 13-year-old girl was a member of Survival Scouts, a national young people's organization. As part of a Survival Scout project, she planned to spend an entire weekend camping alone in the woods. A kidnapper, who knew about the project, phoned the girl's mother the day after the girl left home. The kidnapper said, "We have your daughter. We've already beaten her up once, just to hear her scream. Next time, we might kill her." The kidnapper instructed the girl's mother to deliver a cash ransom to a specified location within one hour. Since there was no way to locate the girl's campsite in the woods, the girl's mother could not find out whether the kidnapper was telling the truth. Horrified that her daughter might be beaten and injured or killed, she delivered the ransom as instructed. She remained in a hys-terical state until the girl returned from her camping trip and the girl's mother realized that the ransom demand had been a hoax. The girl's mother, who already suffered from a heart ailment, had a heart attack the day after the girl's return.

If the girl's mother asserts a claim against the kidnapper for assault, the court should find for

(A) the girl's mother, because the kidnapper was aware that his conduct would frighten her.

(B) the girl's mother, because the court will transfer the kidnapper's intent.

(C) the kidnapper, because the girl's mother did not perceive injury being inflicted upon the girl.

(D) the kidnapper, because the girl's mother had no reason to expect to be touched by the kidnapper.

15. The actor was a retired motion picture actor whose career had consisted primarily of a


series of small roles in films about the jungle. The actor owned a leopard, which the actor had trained and which had appeared with him in motion pictures. The leopard had always been tame and gentle, even when young. When the actor retired, the leopard was old, almost blind, somewhat slow-moving, and the size of a large dog. The actor brought the ani-mal to live with him, keeping it in the fenced yard alongside his house. A 13-year-old girl delivered newspapers to the actor. One day, she came to the actor's home to collect for the past week's deliveries. Since she knew the leopard, the girl opened the gate and called the animal so that she could pet him. The leopard bounded toward the place from which the sound had come, but because he was almost blind, he bumped into the girl. The girl fell to the ground, fracturing her ankle.

If the girl asserts a claim against the actor on a theory of strict liability, the court should find for

(A) the actor, because the injury did not result from a trait that made it danger-ous to keep a leopard.

(B) the actor, because the leopard was not a wild animal.

(C) the girl, because it was unreasonable for the actor to keep the leopard in his yard.

(D) the girl, because the actor should have anticipated that a child would attempt to pet the leopard.

le the plaintiff was visiting her daughter, the two of them decided to go swimming at a nearby public pool. Since she had not brought a bathing suit along on her visit, the plaintiff went to a department store to purchase one. While looking at the suits on the bargain counter, she found one that had been manufac-tured by the defendant. The package that con-tained it bore a label that read, "Disposable Bathing Suit. This garment is made completely from recycled paper. Although it is strong enough to be worn several times and is even washable, it's inexpensive enough to be thrown away after one use. Buy several, and

take them with you on trips to the beach." The plaintiff bought the bathing suit and wore it at the public swimming pool. After swimming for a few minutes, she climbed up to the div-ing board. She was preparing to dive into the pool when the wet paper bathing suit suddenly dissolved and fell from her in shreds, leaving her completely naked. Horrified, the plaintiff climbed down from the diving board as quickly as she could, calling to her daughter, who ran over and wrapped her in a towel.

If the plaintiff asserts a claim against the defendant for damages resulting from her embarrassment, the defendant's best argument in defense is that

(A) the defendant made no representations to the plaintiff.

(B) the plaintiff sustained no physical injury or symptoms.

(C) the plaintiff purchased the suit from the department store.

(D) the defendant acted reasonably in manu-facturing and labeling the bathing suit.

17. A mother needed butter for the cookies that she was baking, so she asked her seven-year-old son to go to the store on Main Street. Because traffic on Main Street was sometimes heavy, the son was not usually permitted to ride his bicycle on the roadway there. The mother needed the butter right away, however, so she told him that he could ride in the road-way if he was sure to stay on the left side so that he could see cars coming toward him. A driver was driving his car on Main Street when he was momentarily blinded by the sun. He did not see the son, who was riding toward him in the roadway, and struck him, causing the son to sustain serious injuries. The son subsequently asserted a claim for negligence against the driver. The driver raised a defense based on contributory negligence. In a juris-diction that applies the all-or-nothing rule of contributory negligence, the driver's defense will succeed only if

(A) the son acted unreasonably.

TORTS QUESTIONS 631

(B) the mother acted unreasonably.

(C) either the mother or the son acted unrea-sonably.

(D) both the mother and the son acted unrea-sonably.

18. The company manufactured a device for train-ing dogs. The device consisted of a leather strap fastened to a collar made of metal links. The links were connected to each other in such a way that a pull on the leather strap would cause the collar to tighten painfully around the neck of the dog wearing it. In this way, the dog being trained could be disci-plined immediately upon performing improp-erly. A professional dog trainer was working with a dog in her unfenced front yard and was using a brand new device. A walker was walk-ing past the yard when the dog began to snarl and lunge at him. When the trainer yanked on the leather strap of the device, it suddenly broke, freeing the dog. The dog sprang for-ward, biting the walker.

If the walker asserts a claim against the com-pany alleging that the device used by the trainer was defective, the court should find for

(A) the company, because the walker was not a purchaser or consumer of the product.

(B) the company, if the device had been sub-mitted to all reasonable tests and inspec-tions before being marketed.

(C) the walker, if the dog was a dog of aver-age size and strength.

(D) the walker, because it was foreseeable that a leather lead would eventually weaken and break when used as the device was meant to be used.

19. On a boy's first birthday, his aunt bought him a rag doll as a gift. The toy was made of plush material, with buttons sewn on for eyes. While playing with the toy, the boy pulled one of the buttons off, put it in his mouth, and choked to death on it. The boy's father commenced an action against the aunt under the state's wrongful death statute.

If the father is successful in his action against the aunt, it will probably be because

(A) the aunt was negligent in giving the rag doll to the boy.

(B) the rag doll was unfit for ordinary use.

(C) the rag doll was defective when the aunt gave it to the boy.

(D) the rag doll was unreasonably dangerous when the aunt gave it to the boy.

20. Because the plaintiff had a headache, he took two headache tablets from a bottle that had been purchased by his wife at the grocery store. The tablets had been manufactured by the company, which sold them to the grocery store in sealed bottles for resale. Because of a toxic ingredient that the tablets contained, the plaintiff became ill as a result of taking them.

If the plaintiff asserts a claim based on negli-gence against the grocery store for his dam-ages, the court should find for

(A) the plaintiff, because the company's neg-ligence is imputed to the grocery store.

(B) the plaintiff, because a retailer has an absolute duty to provide safe products.

(C) the grocery store, because the bottle con-taining the tablets was sealed when the grocery store received it.

(D) the grocery store, because the tablets had been purchased by the plaintiff's wife.

21. The driver was looking for an address as he drove down the street and was not watching the road in front of him. As a result, he did not see the pedestrian crossing the street in front of him and struck her with his car, knocking her down. The driver immediately got out of her car to help the pedestrian. When he saw that she was unconscious, he became afraid to move her, and he left her in the road-way while he ran to a nearby phone. While the driver was gone, a taxi driver drove down the same street. Because he was intoxicated by the drug PCP, the taxi driver did not see the


pedestrian in the roadway and drove over her, fracturing her leg.

If the pedestrian brings an action against the taxi driver for damages resulting from her fractured leg, the taxi driver's liability will most probably turn on whether it was foresee-able that

(A) the driver would drive negligently and would leave the pedestrian lying in the roadway after striking her.

(B) a person struck by an automobile would be involved in a second accident within a short period of time.

(C) a person would be in the roadway.

(D) the taxi driver would drive while intoxi-cated by the drug PCP.

22. The power company operated a nuclear power plant on the seashore just outside the city and sold electricity generated by its operations to city residents. To cool its equipment, the power company drew water from the ocean and piped it through portions of its plant. Because this operation made the water highly radioactive, the power company stored used water in a series of large concrete holding ponds. The water stored in this fashion was subjected to a series of procedures designed to "neutralize" it by removing the radioactivity before it was returned to the ocean. Because of an earthquake, one of the concrete holding ponds cracked, permitting several million gal-lons of neutralized water to escape. Although the escaping water was not radioactive, it caused substantial damage to the fields of the fanner as it passed over them.

If the farmer asserts a claim against the power company for damage to his realty, the court should find for

(A) the farmer, because operating a nuclear power plant is an abnormally dangerous activity.

(B) the farmer, because water is a substance that is likely to do great harm if it should escape from captivity.

(C) the fanner, because it was unreasonable to operate a nuclear power plant in an area where an earthquake could occur.

(D) the power company, because the damage resulted from an Act of God.

23. The company was a manufacturer of explo-sives used in mining for gold and silver. Its warehouse, which contained large quantities of explosives, was located a short distance from the town. A group of political extremists were planning to set off a series of bombs in public places in the town. Several members broke into the company's warehouse for the purpose of stealing explosives to use in making bombs. Their entry set off an alarm that brought the police. Rather than surrender to the police, the terrorists committed suicide by detonating the explosives that they had stolen. The blast caused the entire warehouse to explode. A house owned by the homeowner and located a half mile away was damaged by the explosion.

If the homeowner asserts a claim for damages against the company on the ground that storing explosives was an abnormally dangerous activ-ity, which of the following would be the com-pany's most effective argument in defense?

The explosion did not result from unrea-sonable conduct by the company.

The damage did not result from a physi-cal invasion of the homeowner's realty by any tangible object in the control of the company.

The conduct of the terrorists was an inter-vening cause of harm.

It was not foreseeable that terrorists would deliberately detonate explosives in the warehouse.

24. The seller kept an antique hay wagon in front of her house as a yard ornament. On several occasions, she offered to sell the hay wagon to her neighbor, the buyer, for $500. Although the buyer admired it, he had always been unwilling to pay the seller's price. After read-ing a magazine article about the increasing popularity of farm antiques, the buyer

TORTS QUESTIONS 633

concluded that the value of the seller's hay wagon was likely to increase, and that it would therefore be a good investment. One day he approached her, saying, "If you're still interested in selling that hay wagon, I'll pay $500." The seller was surprised that he had changed his mind, but did not ask him why because she was afraid that he would change it back again. Instead, she said, "I'll take your offer," and sold him the wagon. Two months later, an antique dealer who saw the wagon in the buyer's yard bought it from him for $2,000.

If the seller asserts a misrepresentation claim against the buyer, the court should find for

the seller, if the buyer knew more about the value of antique hay wagons than the seller did.

the seller, because the buyer purchased the hay wagon for the undisclosed pur-pose of profiting from his investment.

the buyer, because he was not required to disclose his purpose in purchasing the hay wagon.

the buyer, if the seller was initially satis-fied with the price that the buyer paid her for the hay wagon.

25. A state statute provides that no person shall transport passengers for hire in an airplane unless that person shall be licensed as a com-mercial airplane pilot. A pilot owned a small private airplane but did not have a commercial pilot's license. A businessman, who had a business engagement in the City of Atlantis, offered the pilot $200 to fly him there in the pilot's plane. The pilot agreed, after informing the businessman that he did not have a commercial pilot's license as required by law. While they were flying over the City of Byzantine, the pilot realized that he had mis-calculated the amount of fuel that he needed for the trip. As a result, he was forced to land at the Byzantine Airport. After landing and while waiting to be refueled, the pilot's plane was struck by a plane that was being negli-gently operated by another pilot. The first pilot

and the businessman were both injured in the collision. The jurisdiction applies the all-or-nothing rule of contributory negligence.

The businessman asserted a claim against the first pilot, alleging that the first pilot was neg-ligent in miscalculating the quantity of fuel needed to make the trip to Atlantis. Which of the following arguments would be the first pilot's most effective argument in defense?

(A) The businessman assumed the risk, because he knew that the first pilot did not have a commercial pilot's license.

(B) The businessman was contributorily neg-ligent in accepting a ride with the first pilot, whom he knew to be unlicensed.

(C) The first pilot's miscalculation was not a legal cause of the injury sustained by the businessman, because the first pilot's plane was safely on the ground when struck by the plane operated by the second pilot.

(D) The first pilot's miscalculation was not a factual cause of the injury sustained by the businessman, because the harm would not have occurred if the second pilot had not been negligent.

26. A company was the manufacturer of various products used by physicians engaged in prac-tice and research. One of its products was Medihol, a colorless alcohol used by physi-cians for cleaning the skin of patients before administering injections. Another of its prod-ucts was Slid-Kleen, a red liquid for cleaning glass microscope slides used in medical and research laboratories.

Because Slid-Kleen contained a strong solvent that was damaging to human skin, the label normally affixed to bottles in which it was sold contained language advising users to wear rubber gloves while handling the product.

As a result of an oversight at the company's plant, Medihol labels were erroneously placed on several bottles of Slid-Kleen. One of the mislabeled bottles was delivered to a doctor's


office. In giving an injection to a patient, the doctor used the Slid-Kleen, believing it to be Medihol. As a result, the patient sustained damage to his skin.

In a negligence action by the patient against the company, if one of the following facts or inferences were true, which would provide the company with its strongest argument in defense?

(A) It was unforeseeable that a doctor with the doctor's training and experience would mistake Slid-Kleen for Medihol, since they were two different colors.

(B) If the doctor had been acting reasonably, she would have realized that the product that she was using was not Medihol, since it was red instead of colorless.

(C) The doctor's failure to notice that the product that she was using was red, and therefore was not Medihol, amounted to gross negligence.

(D) The doctor's conduct was an intervening cause of the patient's injury.

27. Which of the following persons is most likely to recover in an action against the manufac-turer of a hypodermic needle?

(A) A doctor's child, who found the needle in the doctor's medical bag and was injured when a defect caused it to break while the child was playing with it.

(B) A doctor's patient, who was injured when a defect caused the needle to break while the doctor was injecting him with it.

(C) A dentist, who lost profits when she was unable to inject a patient with the needle because a defect caused it to break.

(D) A narcotics addict, who contracted hepa-titis because the needle was infected with the microbe that caused that dis-ease.

28. A crop duster sprayed insecticides onto grow-ing crops from an airplane that she flew within 15 feet of the ground. In locating the fields of

her customers, she used a map that the county published for that purpose and that identified every parcel of real estate in the area by a par-cel number. A farmer hired the crop duster to spray his fields with insecticide. The farmer knew that his farm was identified on the county map as parcel 612, but by mistake he told the crop duster that it was parcel 621. As a result, the crop duster sprayed the farm that the county map identified as parcel 621. That farm belonged to a gardener, who had con-tracted to grow his crop without chemical insecticides and to sell it to an organic produce distributor. As a result of the crop duster's spraying, the gardener was unable to fulfill his contract and sustained serious economic losses.

If the gardener asserts a claim against the crop duster for damages resulting from trespass to land, the court should find for

(A) the gardener, because crop dusting is an abnormally dangerous activity.

(B) the gardener, because the crop duster intentionally flew through the airspace above his land.

(C) the crop duster, because she reasonably believed that the farm that she was spraying belonged to the farmer.

(D) the crop duster, because there was no damage to the gardener's land.

29. A state senator was chair of the Senate Investi-gations Committee, which was looking into accusations of corruption in the governor's office. Because reports of committee agents were beginning to indicate that there was a sound basis for the accusations, the senator kept them locked in her office safe to prevent them from becoming public knowledge before the investigation could be completed. A reporter was an investigative journalist who specialized in exposing dishonesty in govern-ment. One night, he broke into the senator's office, picked the lock on her safe, and photo-graphed the documents that it contained. The following day, realizing that the security of the documents had been compromised, the senator

TORTS QUESTIONS 635

conducted a press conference in which she made their contents known. Before she had completed the conference, however, newspapers containing the reporter's story about the papers in the senator's safe were being sold.

If the senator instituted an action against the reporter for invasion of privacy, the court should find for

the reporter, since the documents in the senator's safe were newsworthy.

the reporter, since he was protected by the First Amendment to the United States Constitution.

the reporter, since the senator made the documents a matter of public record at the press conference.

the senator, since the reporter entered her office without her permission and broke into her safe.

30. A boy, who was 11 years of age, was playing with the plaintiff, who was 10 years of age. While they were playing together, the boy offered to show the plaintiff his new air rifle. The air rifle was manufactured by a local company. The boy purchased it from the defendant with money that he earned by mow- ing the lawns of several of his neighbors. While demonstrating the air rifle to the plaintiff, the boy accidentally shot him with it, severely injuring the plaintiff's eye. The plain-tiff subsequently asserted a negligence claim against the defendant.

If the plaintiff is successful in his claim against the defendant, it will be because a jury finds that

(A) any negligence by the company in the design of the air rifle should be imputed to the defendant.

(B) the air rifle was defectively designed.

(C) the air rifle was defectively manufac-tured.

(D) it was unreasonable for the defendant to sell the air rifle to the boy.

31. A car dealer was in the auto rental business. His rates were low because the cars in his inventory were all at least six years old, and many of them were in poor condition. To keep his expenses as low as possible, he had his cars serviced by the mechanic, a 17-year-old student at the High School of Automotive Trades. The mechanic worked on the car deal-er's cars in his parents' garage after school and on weekends, charging fees that were lower than any of the professional repair shops in town. Sometimes the car dealer found it necessary to send a car back to the mechanic three or four times before the mechanic finally succeeded in repairing it correctly, but since the mechanic did not charge for the return trips, the car dealer did not mind doing so. One of the car dealer's cars had a leaking frammis in the carburetor, which the car dealer knew made it unsafe to drive. He had the frammis repaired by the mechanic and then rented the car to the plaintiff. One hour later, while the plaintiff was driving the car, the frammis began leaking again. As a result, the car exploded, injuring the plaintiff.

If the plaintiff asserts a claim against the car dealer, the plaintiff's most effective argument in support of her claim would be that

(A) the car dealer is vicariously liable for the negligence of his employee.

(B) the duty to maintain a safe car was non-delegable.

(C) the mechanic was an independent con-tractor.

(D) it was unreasonable for the car dealer to hire the mechanic to repair the car.

32. Which statement most correctly completes the following sentence? A retailer owes its cus-tomers

(A) no duty to inspect products furnished by reputable manufacturers.

(B) a duty to inspect the packages of all products sold, but no duty to inspect the contents of those packages.


(C) a duty to inspect only those products that are furnished by manufacturers whose products are not well known to the retailer.

(D) a duty to make a reasonable inspection of all products that are sold by that retailer.

33. The employee was employed by the employer as chief field mechanic. When he received his salary, the employee noticed that he had not been paid for the overtime that he had worked the previous month. When he complained to the employer about it, the employer said that all company employees were expected to put in extra time when necessary, and that he had no intention of compensating the employee for the excess hours. The employee resigned immediately and advised the employer that he would hold the tools that the employer had issued to him until he received payment.

After the employee's resignation, the employer wrote him a letter in which he said, "You were never any good as a mechanic, and in addi-tion, you were the most dishonest employee this company ever had." These statements were false. The employee's mother, who lived with the employee and frequently opened his mail, read the letter as soon as it arrived. In an action by the employee against the employer for defamation, a court should find for

(A) the employee, because the employer's statements were published to the employee's mother.

(B) the employee, only if the employer had reason to know that someone other than the employee would open and read the letter.

(C) the employer, because the statements con-tained in the letter were communicated only to the employee.

(D) the employer, because of the employer's privilege.

34. The pilot was injured when the helicopter that he was flying ran out of fuel and fell from the air, crashing into the roof of a homeowner's house. The pilot purchased the helicopter from

the helicopter maker two months before the accident occurred. The helicopter came equipped with a fuel gauge that was manufac-tured by a gauge maker. The day after the pilot purchased the helicopter, he noticed that the fuel gauge gave incorrect readings. He com-plained to an officer of the helicopter maker, who told him to have it fixed and to send the helicopter maker the bill. A week before the accident, the pilot hired an independent air-plane mechanic to repair the fuel gauge. The mechanic worked on the gauge but failed to repair it properly. The day before the accident, the pilot's partner flew the helicopter, using most of the fuel in the tank. Although the pilot's partner noticed that the fuel gauge con-tinued to indicate that the tank was full, he neither mentioned it to the pilot nor replaced the fuel in the tank. On the day of the acci-dent, the fuel gauge indicated that the tank was full, although it was actually almost empty.

If the pilot wishes to assert a claim for dam-ages on a theory of strict liability in tort, he is most likely to recover against

(A) the helicopter maker only.

(B) the helicopter maker and the pilot's part-ner only.

(C) the helicopter maker and the mechanic only.

(D) the helicopter maker, the pilot' s partner, and the mechanic.

35. A gravel pit owner was the owner of a gravel pit in the northern part of the state. Because the land on which the pit was located was usu-ally covered by a thick layer of snow during the winter months, the gravel pit owner did not conduct operations at the pit during the winter, and the land remained unoccupied dur-ing that season. The gravel pit owner was aware of the fact that neighborhood children used a steep slope on his realty for sledding during the snow season, and he feared that one of the children would be injured by sledding onto the public road adjacent to the property. Although he could have prevented this from

(A) The seller made no representation con-cerning the zoobie.

(B) The buyer did not rely on the seller's representations concerning the zoobie.

(C) The buyer was not justified in relying on the seller's representations concerning the zoobie.

(D) The buyer did not sustain damage.

The first driver was driving north on Canal Street. As he approached the intersection of First Avenue, he noticed that the traffic light was red against him. Preparing to stop, he stepped on his brake pedal. Because the brakes were not working properly, he could not stop, and he continued into the intersection. A sec-ond driver, who was driving east on First Avenue, saw the first driver go through the red light. Because the light was green in his favor, however, the second driver did not stop; he continued into the intersection, believing that he could avoid striking the first driver by steering around him. The two vehicles collided in the intersection. Although damage to the first driver's car was minimal, the second driv-er's car was totally destroyed. The jurisdiction has a statute that prohibits entering an inter-section against a red traffic signal light and another statute that adopts the all-or-nothing rule of contributory negligence.

In an action by the second driver against the first driver, the court should find for

(A) the first driver, since the second driver had the last clear chance to avoid the accident.

(B) the first driver, if it was unreasonable for the second driver to enter the intersec-tion when he did.

(C) the second driver, if the first driver's vio-lation of statute was a substantial factor in producing the damage.

(D) the second driver, since the first driver's conduct was negligence per se.

TORTS QUESTIONS 637

happening by erecting a small fence at a cost of under $200, the gravel pit owner was unwilling to expend that sum. Instead, he posted a sign that read, "No Sledding, Keep Out." Three weeks later, an eight-year-old boy was sledding down the hill on the gravel pit owner's property when his sled coasted onto the adjacent public road into the path of a vehicle driven by a postman. The boy sus-tained serious injuries when he was struck by the postman's vehicle.

If the boy asserts a negligence claim against the gravel pit owner, the court should find for

(A) the boy, because danger invites rescue.

(B) the boy, if the gravel pit owner's failure to erect a fence to prevent the accident was unreasonable.

(C) the gravel pit owner, because the postman had the last clear chance to avoid injur-ing the boy.

(D) the gravel pit owner, if the postman's conduct was an intervening cause of harm.

36. The seller knew that the zoobie of his car's engine was cracked. Because he wanted to sell the car, he filled the crack with putty and painted it so that the crack would not show. Then he brought the car to the buyer, a used car dealer, and offered to sell it for $1,000 cash. The buyer placed the car on a lift so that he could inspect it from underneath. He noticed the filled crack but thought that he would be able to resell the car in spite of it. The buyer offered $500, which the seller accepted. The next day, the buyer was showing the car to a customer when the crack in the zoobie caused the engine to explode, necessi-tating $500 in repairs and injuring the cus-tomer.

If the buyer institutes an action against the seller for misrepresentation, which of the fol-lowing would be the seller's most effective argument in defense?

38. The store owner was the operator of an appli-ance store. Once, while testing a refrigerator


prior to selling it, she discovered a defect in its wiring. Realizing that the defect would make it dangerous for a person to touch the refrigerator while it was plugged in, she resolved not to sell it. Instead, she placed it on the sidewalk in front of her store to attract the attention of passersby. After two years, the refrigerator became so dirty that she decided to get rid of it. In crayon, the store owner wrote "AS IS — $25" on its door. A customer, who was building a food smoker, needed the body of a refrigerator. When he saw the one in front of the store owner's store, he bought it. As she was loading it onto the customer's pickup truck, the store owner said, "I hope you know that this refrigerator doesn't work." The customer said that he did. When the cus-tomer got the refrigerator home, he plugged it in and received a severe electrical shock while attempting to open its door.

In an action by the customer against the store owner for damages resulting from his injury, the court will probably find for

(A) the customer, if it was unreasonable for the store owner to sell the refrigerator without warning him about the wiring defect.

(B) the customer, since the refrigerator was unfit for ordinary use.

(C) the store owner, since the customer pur-chased the refrigerator "AS IS."

(D) the store owner, if it is found that the customer had the "last clear chance" to avoid being injured.

39. The defendant was hunting rattlesnakes on his land with a pistol when he saw the plaintiff carrying a shotgun and attempting to enter the defendant's land by crawling under the barbed wire fence that surrounded it. He waited until the plaintiff had gotten past the fence and approached him, telling him that he was tres-passing and ordering him to leave. The plain-tiff said, "I only want to shoot some birds. I got a right to do that if I want to, don't I?" After the plaintiff said this, the defendant placed his hand on the plaintiff's chest and

pushed him gently backward, repeating his demand that the plaintiff leave. The plaintiff shoved the defendant away from him and pointed his shotgun at the defendant, saying, "Nobody pushes me, Mister." The defendant immediately drew his pistol from the holster on his belt and fired at the plaintiff, striking him in the arm and causing him to drop his shotgun.

If the plaintiff asserts a claim against the defendant for battery, the court should find for

(A) the defendant, if he fired at the plaintiff to defend his realty against a trespass.

(B) the defendant, if he fired at the plaintiff to defend himself against the plaintiff's threat with the shotgun.

(C) the plaintiff, because the defendant struck the first blow.

(D) the plaintiff, because the defendant did not use force against him until his entry onto the realty was complete.

40. The felicet is a species of wildcat that inhabits the Island of Langoa in the Creolic Ocean. Although the wild felicet is ferocious, natives of Langoa frequently capture young felicets and, after taming them, keep them as house pets. The defendant grew up on the Island of Langoa, where he obtained his pet felicet. When he emigrated to the United States five years ago, he was permitted to bring his felicet with him after submitting it to a six-week period of quarantine. The cat had been gentle ever since the defendant tamed it eight years before leaving Langoa. Recently, the defendant's neighbor, the plaintiff, was walking past the defendant's house when the felicet tore through a window screen, jumped into the street, and attacked the plaintiff, seri-ously injuring him. The plaintiff subsequently asserted a claim against the defendant for his damages.

If the plaintiff is successful in his claim against the defendant, it will probably be because

TORTS QUESTIONS 639

(A) the plaintiff's damages resulted from the defendant's keeping a wild animal.

(B) it was foreseeable that the felicet would do something unforeseeable.

(C) the thing speaks for itself (res ipsa loqui-tur).

(D) the plaintiff's keeping the felicet amounted to a private nuisance.

41. A company manufactured a safety helmet in hopes of selling it to the United States Marine Corps for general utility purposes, but it was unsuccessful in doing so. Instead, it sold the helmets to the general public under the name Head Shields. Head Shields were packaged in boxes that showed pictures of three persons wearing the helmet: one riding a horse, one riding a motorcycle, and one doing construc-tion work. A motorcyclist found a Head Shield that someone had discarded in its original box. He wore it the next day while riding his motorcycle and sustained a severe head injury when he fell from his motorcycle.

The motorcyclist asserted a claim against the company for his injuries in a jurisdiction that has adopted a rule of "pure comparative negli-gence." At the trial, the motorcyclist proved that the Head Shield was not suitable for use as a motorcycle helmet, and that if it had been, he would not have sustained injury.

The court should find for

(A) the company, because the motorcyclist found the Head Shield.

(B) the company, if Head Shields were not designed or intended for use as motor-cycle helmets.

(C) the motorcyclist, unless his fall from the motorcycle resulted from his own unrea-sonable conduct.

(D) the motorcyclist, because the box in which the Head Shield was sold con-tained a picture of a person wearing the Head Shield while riding a motorcycle.

42. When the owner brought his car to the mechanic's shop for repairs, the mechanic told him that he would test-drive the car after repairing it. While the mechanic was test-driving the car, he struck a pedestrian. A stat-ute in the jurisdiction provides that "The owner of any motor vehicle operated on the roads of this state shall be vicariously liable for the negligence of any person operating said motor vehicle with said owner's permission." The pedestrian instituted an action against the owner and the mechanic and obtained a judg-ment against both of them for $10,000.

If the owner pays the judgment in full, which of the following is correct regarding the own-er's rights against the mechanic?

(A) The owner may recover $10,000 from the mechanic.

(B) The owner may recover $5,000 from the mechanic.

(C) The owner may recover $7,500 from the mechanic.

(D) The owner may not recover from the mechanic.

43. Mayflower seeds are a common ingredient in bird food. Although they are sometimes pro-cessed for use as cooking oil, they are not usu-ally eaten raw by human beings because they have a bitter, oily taste. The breeder was a breeder of exotic birds. Since he had studied bird nutrition, he preferred to mix feed for his birds according to his own formula instead of using commercially available mixes. For this purpose, he purchased a sealed 50-pound package labeled "Mayflower Seeds" from the dealer, who was in the business of selling supplies for bird and livestock breeders. The dealer had bought the sealed package from the wholesaler, a wholesaler of seed and grain. Because of negligence at the wholesaler's plant, the seeds in the package were poison-ous. The breeder ate some of the Mayflower seeds while he was mixing the bird food and became ill several hours later as a result. Before becoming ill, the breeder fed the seeds to several of his birds, which died as a result.


If the breeder brings an action in strict liability against the wholesaler for the value of the birds that died, a court is most likely to find for

(A) the breeder, if the poisonous nature of the seeds was a defect.

(B) the breeder, but only if it was reasonable for the dealer to resell the seeds without inspection.

(C) the wholesaler, since the wholesaler had no contractual relationship with the breeder.

(D) the wholesaler, unless the breeder is unable to recover damages from the dealer.

44. Although he had been warned that swimming within one hour after eating was likely to cause a cramp, a swimmer went swimming in the lake immediately after lunch. He had been swimming for a few minutes when he devel-oped severe cramps. Finding himself unable to swim any further, he began calling for help. The swimmer's cries attracted the attention of a rescuer, who happened to be walking near the lake. The rescuer jumped into the water, swam to the swimmer's side, and, grabbing the swimmer by the hair, towed him to safety. In getting out of the lake, however, the rescuer cut his leg on a fragment of glass that was embedded in the lake bottom.

If the rescuer asserts an action against the swimmer for personal injuries, the court should find for

(A) the rescuer, if it was negligent for the swimmer to swim so soon after eating.

(B) the rescuer, because his injury occurred while he was attempting to rescue the swimmer.

(C) the swimmer, because danger invites res-cue.

(D) the swimmer, if the glass fragment is an intervening cause of the rescuer's injury.

45. The company was a manufacturer of computer hardware. The defendant was a retailer who purchased products from the company. At an industrial convention, the defendant told the company that he heard that their mutual friend, the plaintiff, was about to go into personal bankruptcy. The company did not believe what the defendant was telling him and resolved to mention it to the plaintiff as soon as the opportunity presented itself. The following day, the plaintiff called the company to discuss computer hardware. The company told the plaintiff what the defendant had said at the party. The plaintiff laughed, assured the com-pany that he was in excellent financial condi-tion, and they both laughed at the rumor.

If the plaintiff asserts a defamation claim against the defendant, which of the following would be the defendant's most effective argu-ment in defense?

(A) The plaintiff did not experience mental suffering.

(B) The plaintiff did not sustain damage to his reputation as a result of the state-ment.

(C) The defendant was only repeating what he had heard.

(D) The defendant did not publish any state-ment about the plaintiff.

46. The plaintiff was employed as an insulation installer by various builders and general con-tractors for a period of 35 years. During that time, he was repeatedly exposed to an insulat-ing material known as plastic wool, which was manufactured by the defendant. Last year, it was discovered for the first time that exposure to plastic wool is a cause of cancer and that the plaintiff had contracted cancer as a result of his contact with the product.

In a jurisdiction that applies the all-or-nothing rule of contributory negligence, if the plaintiff asserts a negligence claim against the defen-dant for damages resulting from the plaintiff's exposure to plastic wool, the defendant's most

TORTS QUESTIONS 641

effective defense would be based on the argu-ment that

(A) the plaintiff assumed the risk.

(B) the defendant did not know that contact with plastic wool would result in cancer.

(C) the reasonable person in the defendant's situation would not have anticipated that exposure to plastic wool would result in cancer.

(D) the plaintiff's only remedy is that created by workers' compensation statutes.

47. An insecticide factory was located on the edge of the city. When the wind blew from the east, foul-smelling waste gases from the factory's chimneys were blown over the city, causing most of the residents to experience a burning of the eyes and throat.

A gardener's flower and plant shop was located across the street from the factory in a building that the gardener rented from a land-lord. Gases from the factory caused some of the potted plants that the gardener had for sale in his shop to die. One of the gardener's employees suffered from allergies. As a result, he found the gases so irritating to his eyes that he was unable to continue working at the gar-dener's shop and had to quit his job. Who may successfully assert a private nuisance claim against the factory?

(A) The landlord only.

(B) The landlord and the gardener only.

(C) The gardener and the employee only.

(D) The landlord, the gardener, and the employee.

48. When the defendant entered a restaurant for lunch, she hung her coat on the coatrack. When she was leaving, she removed from the rack a coat that looked like hers, but which actually belonged to the plaintiff. At the time she took it, the defendant believed it to be her coat, but when she had driven two miles from the restaurant, she realized that it was not hers. She turned around and was driving back to the

restaurant when she was involved in an auto-mobile accident. The plaintiff's coat was com-pletely destroyed in the accident.

If the plaintiff asserts a claim against the defendant for trespass to chattel, the court should find for

(A) the plaintiff, because the coat was com-pletely destroyed after the defendant took it.

(B) the plaintiff, unless the automobile acci-dent in which the coat was destroyed occurred without fault by the defendant.

(C) the defendant, because she believed the coat to be her own when she took it.

(D) the defendant, if she was making a rea-sonable effort to return the coat when it was destroyed.

49. A trucker was eating cherry pie in a restaurant when a cherry pit contained in the pie stuck in his throat. Unable to breathe, the trucker began choking. A doctor, who was eating in the restaurant, ran to the trucker's aid and performed an operation known as an emergency trache-otomy. She did this by cutting the skin of the trucker's throat with a pocket knife and creat-ing an opening in his windpipe through which the trucker was able to breathe. Then, at the doctor's direction, the trucker walked across the street to a hospital so that the opening that the doctor created could be cleaned and ban-daged. Because hospital employees negligently failed to enter the trucker's name in the emer-gency room register, he sat in the emergency room for six hours without further attention. At that time, an earthquake caused a portion of the hospital's structure to fall, striking the trucker in the head and fracturing his skull.

In an action by the trucker against the hospital for damages resulting from his fractured skull, the court is most likely to find for

(A) the hospital, but only if the state has a "Good Samaritan" statute.

(B) the hospital, unless the doctor's conduct was found to be foreseeable.


(C) the hospital, unless it was foreseeable that the trucker would be injured by an earthquake if left waiting for six hours.

(D) the trucker, since a hospital owes its patients a duty to protect them against natural disasters.

50. A homeowner went to a garden supply store to purchase fertilizer for the apple trees that grew in his backyard. Since he did not know what brand was best for his purposes, he asked the store's owner to recommend a fertilizer that was especially good for apple trees. The store owner suggested a product that he said was good for all fruit trees. The homeowner pur-chased the product and applied it as the label directed. While doing so, he got some of the product on his hands. Because of an allergy that he had, the product irritated his skin, causing him considerable pain and disabling him for a period of time.

In an action by the homeowner against the store owner for damages resulting from breach of warranty, which of the following comments is most correct?

(A) There was no implied warranty that the product was fit for the homeowner's particular purpose because his purpose was the same as the product's ordinary use.

(B) There was no implied warranty of mer-chantability since the homeowner relied on the store owner's recommendation in purchasing the product.

(C) There was neither an implied warranty that the product was fit for a particular purpose nor an implied warranty of mer-chantability.

(D) There was an implied warranty that the product was fit for the homeowner's particular use and there was an implied warranty of merchantability.

51. The defendant is a supplier of telephone ser-vice to the city. Many of the wooden poles from which the defendant's wires are strung have been standing for more than 40 years and

are in a rotted condition. A driver lost control of his automobile because he was driving while intoxicated, and he collided with one of the defendant's rotted poles. As a result of the collision, the pole fell over, striking a parked car and injuring the plaintiff, who was sitting in it.

In an action by the plaintiff against the defen-dant, the court should find for

(A) the plaintiff, if it was unreasonable for the defendant to permit its poles to become rotted.

(B) the plaintiff, since it was foreseeable that if a pole fell, it would injure a person sitting in a parked car.

(C) the defendant, since the driver's conduct either amounted to gross negligence or was criminal.

(D) the defendant, if the force of the collision would have caused even a reasonably good pole to fall.

52. Automobiles driven by Able and Baker col-lided in an intersection. Able and Baker asserted negligence claims against each other for damage to their vehicles. In addition, a passenger in Able's car at the time of the acci-dent asserted a negligence claim against both of them for her personal injuries. The claims were all consolidated and tried together. In answer to specific questions posed by the court, the jury found that the accident was 60 percent the fault of Able and 40 percent the fault of Baker. In addition, the jury found that damage to Able's car amounted to $1,000, that damage to Baker's car amounted to $10,000, and that damage to the passenger amounted to $100,000. The court ruled that Able and Baker were jointly and severally liable for the pas-senger's injuries.

The jurisdiction had a statute that provided that "In any negligence action, a plaintiff's recovery shall not be barred by that plaintiff's fault, but the recovery of said plaintiff shall be diminished in proportion to that plaintiff's

TORTS QUESTIONS 643

fault." Which of the following correctly states the sum to which Baker is entitled?

(A) $6,000 ($10,000 less 40 percent).

(B) $4,000 ($10,000 less 60 percent).

(C) $10,000.

(D) 0.

53. A boy, who was 11 years old, received a sled manufactured by the sled company from his uncle as a Christmas present. Since he already had a better sled, the boy sold the sled to his neighbor, the plaintiff. The plaintiff was riding the sled down a snow-covered hill when one of the bolts that held it together broke, causing the sled to overturn and injure the plaintiff severely. The bolt broke because of a crack that existed when the sled left the sled factory but which was too minute to be discovered by reasonable inspection. If the plaintiff brings an action against the sled company, the court should find for

(A) the plaintiff, if the cracked bolt was a defect.

(B) the plaintiff, but only if the boy did not use the sled before selling it to the plaintiff.

(C) the sled company, since the sale by the boy was outside the regular course of business.

(D) the sled company, because the crack was too minute to be discovered upon rea-sonable inspection.

54. The landlord was the owner of a four-story office building. The entire second floor of the building was leased to an attorney, and the other floors were divided into offices and leased to various other tenants. Pursuant to the lease between the landlord and the attorney, a building manager employed by the landlord was to be on duty daily between the hours of 8 A.M. and 6 P.M. The building was to be open to the public during those hours. At other times, the attorney was free to enter by using his key. On April 1, the attorney was riding in

the building elevator when it suddenly and without warning plunged swiftly downward, shaking the attorney up severely. The attorney immediately notified the landlord, who prom-ised to fix it. The landlord did nothing about it, however. On April 2, a client called to make an appointment to consult with the attor-ney for legal advice. Because the client was unable to come to the attorney's office during regular business hours, the attorney told the client to come the following morning at 6:30 A.M. On April 3, the attorney met the client at the entrance to the building, let them both in with his key, and led the client to the elevator. While they were riding in the eleva-tor to the attorney's office, the elevator sud-denly plunged swiftly downward, stopping short when it reached the bottom of the eleva-tor shaft. The client was severely injured in the fall.

The client asserted a negligence claim against the attorney for damages resulting from the elevator accident. The court should find for

(A) the client, if the attorney knew or should have known that the elevator might not be working properly.

(B) the client, because the entire second floor had been leased to the attorney.

(C) the attorney, if the lease required the landlord to keep the elevator in good repair.

(D) the attorney, because he was only a ten-ant in the building.

55. A trucker was driving a truckload of gravel over a highway in a rural part of the state when, through no fault of her own, one of the tires on her truck blew out, causing the truck to go out of control. The truck overturned, spilling the gravel onto the land of the land-owner, which was adjacent to the road. The trucker, who was unhurt, returned later with another truck and a tractor equipped with a power shovel. Using the power shovel, the trucker scooped up the spilled gravel and loaded it onto the other truck.


If the landowner asserts a claim against the trucker for trespass to land, the court should award the landowner a judgment for

(A) nominal damags only.

(B) all damages resulting from the spilling of gravel onto the landowner's land.

(C) only the damages caused by the trucker's removal of the gravel from the landown-er's land.

(D) no damages.

56. A horseman owned and bred horses and was an excellent rider. He purchased a horse known as Thunder, even though he had heard that Thunder was wild and dangerous, because he hoped that he would be able to "break" or train him. Each time the horseman attempted to approach the horse, however, Thunder reared and kicked at him. Finally, the horse-man hired a professional horse trainer to break Thunder. After explaining that Thunder had repeatedly attacked him, the horseman showed the trainer to Thunder's corral. While the horseman stood outside watching, the trainer entered the corral, holding out his hand and making soft murmuring noises to attract Thunder's attention. When Thunder saw the trainer, the horse kicked him, fracturing the trainer's leg.

If the trainer asserts a claim for damages against the horseman, the court should find for

(A) the trainer, since the horseman knew that Thunder had a propensity to attack human beings.

(B) the trainer, since Thunder was a wild ani-mal.

(C) the trainer, since the horseman acted unreasonably in permitting the trainer to enter the corral under the circumstances.

(D) the horseman, since the trainer knew that Thunder was dangerous when he entered the corral.

57. A man bought a used car from the car dealer. Although the car dealer assured the man that

he believed the car to be in good condition, the contract of sale signed by both the man and the car dealer contained the phrase "This Vehicle Sold AS IS" in large black letters. The man was driving the car the following day when the steering jammed, causing the car to collide with a power pole. The man's wife, who was sitting beside him in the car, was injured in the crash.

If the wife asserts a claim for damages against the car dealer on the grounds that the car dealer breached the implied warranty of mer-chantability, the court should find for

(A) the car dealer, because the contract of sale contained the phrase, "This Vehicle Sold AS IS."

(B) the car dealer, because he did not enter into any contractual relationship with the wife.

(C) the wife, because the vehicle was unfit for ordinary use.

(D) the wife, because the car dealer said that he believed the car to be in good condi-tion.

58. The plaintiff brought her car to the defendant, a used car dealer, asking him to sell it for her. The defendant said that he would attempt to do so on consignment, at a commission consisting of 20 percent of the sale price. The plaintiff said that the terms were acceptable to her, but that because she had recently spent $800 for a custom two-tone, black-and-silver paint job, she wanted the car kept out of the sun. The defendant agreed, and the plaintiff left the car with him.

The defendant left the car in the sun, which caused its paint to fade. Believing that a new paint job would make the car easier to sell, the defendant had it painted red without consulting the plaintiff. Before it was repainted, the defendant drove the plaintiff's car 4,000 miles on his own personal business. After it was painted, the defendant's customers drove it an additional 1,000 miles while deciding whether

TORTS QUESTIONS 645

to purchase it. Although the value of the plain-tiff's car did not change while it was in the defendant's possession, the defendant was unable to sell the car. The plaintiff subse-quently asserted a conversion claim against the defendant.

If the plaintiff is successful in her conversion action, the most she will be entitled to recover is

(A) the value that the car had had at the time the plaintiff delivered it to the defen-dant.

(B) the cost of restoring its paint to the con-dition that existed at the time she deliv-ered it to the defendant.

(C) the reasonable value of the car's use for 4,000 miles.

(D) nothing.

59. A company manufactures a product called Term-Aid, consisting of chemical pellets that emit fumes that are poisonous to termites and their eggs. Because Term-Aid fumes are poi-sonous to human beings as well, the company sells the product to professional exterminators only, requiring that each purchaser show his or her state exterminator's license when making a purchase. A shop owner, a licensed extermina-tor, bought a large container of Term-Aid from the company for use in his business. The con-tainer bore a label that read: "Term-Aid. For killing termites. Caution: This product is intended for use by professional exterminators only. Unauthorized use by any other persons may be dangerous." The shop owner placed the container on a shelf in his shop, where it was discovered by an independent contractor who the shop owner periodically hired to clean his shop. Since the cleaner thought there were termites in his house, he opened the container and poured some of the chemical pellets into a plastic bag that he then brought home. The next day, the cleaner's three-year-old daughter found the plastic bag containing the Term-Aid pellets and ate some of them, becoming seriously ill as a result. A statute in the jurisdiction adopted the all-or-nothing rule of contributory negligence.

In a negligence action by the girl against the company, the company's most effective argu-ment in defense would be that

(A) the cleaner was contributorily negligent.

(B) the shop owner's conduct was an inter-vening cause of harm.

(C) the cleaner's conduct was an intervening cause of harm.

(D) the company did not act unreasonably.

60. A warehouse owner was the owner of a ware-house that was usually unattended at night. As a result, burglars had broken in on several occasions and had stolen valuable merchandise from the warehouse. The warehouse owner looked into the possibility of hiring a security guard but decided that it would be too expen-sive. Instead, he installed an explosive device in the doorway, rigging it to explode if anyone opened the door without first inserting a key in a specially constructed slot. A burglar was attempting to break into the warehouse own-er's warehouse for the purpose of stealing when the explosive device detonated while he was trying to open the door. The burglar was seriously injured in the explosion.

If the burglar is successful in an action against the warehouse owner, it will most probably be because the court finds that

(A) it was negligent for the warehouse owner to install the explosive device, since it was foreseeable that a person entering on legitimate business might be injured by it.

(B) the warehouse owner used excessive force to defend his property, since the explosive device was liable to inflict serious or deadly injury.

(C) the use of a mechanical device is not per-mitted in defense of property.

(D) the explosive device was just as likely to injure an innocent bystander as a thief.


61. After living together for several months, a man and his girlfriend began to argue frequently. On Monday, after an argument, the man left their apartment in anger, saying that he didn't know when he was coming back. The girl-friend changed the lock on the front door and began advertising for a roommate. The follow-ing Saturday, the girlfriend took all the man's possessions, including his television set, which was valued at $600, to a swap meet in hopes of selling them. At the swap meet, she put up a sign that said, "Moving. Everything Must Be Sold Today."

A neighbor was browsing at the swap meet when she saw the television set at the girl-friend's booth. She asked whether it was in good condition, and when the girlfriend said that it was, she asked the price. The girlfriend said, "$50." The neighbor immediately handed the girlfriend the cash, placed the television in her station wagon, and hurried home.

In an action by the man against the neighbor for conversion, a court should find for

(A) the man, since the neighbor desired to make the television her own, and did so.

(B) the man, since the price of $50 should have made the neighbor aware that there was something suspicious about the sale.

(C) the neighbor, since it was reasonable for her to believe that the girlfriend owned the television set and that the price was low because the girlfriend needed to sell it in a hurry.

(D) the neighbor, since the television was not in the man's possession when she acquired it.

e plaintiff and the defendant lived on the same street and worked in the same office, so they formed a car pool, each driving his own car on alternate days. One day while the defendant was driving, the car in front of his stopped suddenly and without warning. Since the defendant had taken his eyes off the road

for a moment to look at the plaintiff, he was unable to stop in time and collided with the rear of the stopped car. The plaintiff was injured as a result of the collision.

A statute in the jurisdiction provides that "No person shall maintain an action for damages resulting from negligence in the operation or ownership of an automobile if said person was a guest in said automobile at the time said damages allegedly occurred." In an action by the plaintiff against the defendant for damages resulting from his injuries, which of the fol-lowing arguments is most likely to result in a judgment for the plaintiff?

(A) The fact that most drivers have insurance makes the statute obsolete.

(B) The plaintiff was not a guest, since his driving on alternate days was consider-ation for the ride.

(C) The defendant's conduct was reckless and therefore constituted aggravated negli-gence, a lawsuit that is not prohibited by the statute.

(D) Enforcement of the statute will leave the plaintiff without a remedy.

The company is the manufacturer of a device known as the Claw, which was designed for use by professional rescuers in removing acci-dent victims who have become pinned in auto-mobiles. The Claw consists of power-scissors which, when connected to a portable power-pack, are strong enough to rapidly cut through the metal of a car body. Because the Claw is heavy and powerful, improper use of it could result in serious harm to the user, as well as to the person being rescued.

A fire department purchased a Claw from a firefighter supply store. Subsequently, the fire department was called to the scene of an acci-dent in which a woman was trapped in her car. The fire chief directed a volunteer firefighter to use the Claw to free the woman from her car, although he knew that the volunteer fire-fighter had not been trained in its use.

TORTS QUESTIONS 647

The volunteer firefighter, who had never heard of the Claw before, started to use the Claw. However, due to a crack caused by a manufac-turing defect, the Claw operated improperly, injuring the firefighter. If the volunteer fire-fighter institutes an action against the com-pany, the company's most effective argument in defense would be that

(A) it had acted reasonably in its marketing and sale of the Claw.

(B) the firefighter supply store substantially changed the Claw before selling it to the fire department.

(C) the volunteer firefighter assumed the risk, since he attempted to use the device without proper training.

(D) the volunteer firefighter's attempt to use the machine without training was an independent intervening cause of harm that broke the chain of proximate causa-tion.

64. As a result of her neighbor's negligence, a baker's shoulder and eye were both injured. The baker went immediately to her eye doctor. The eye doctor treated the injury to the bak-er's eye but suggested that she see an orthope-dist for treatment of her shoulder. The following day, the baker visited an orthopedist, who treated the baker's shoulder.

Because of negligent treatment by the eye doc-tor, the baker's nose became infected, and because of negligent treatment by the orthope-dist, she lost the use of her elbow.

In an action by the baker against the eye doc-tor, a court is most likely to hold the eye doc-tor liable for

(A) nothing, since all the injuries were caused by the negligence of the neighbor.

(B) the injury to the baker's nose, since it is the only one of her injuries that was caused by his negligence.

(C) the injury to the baker's nose and the injury to the baker's elbow, since both were caused by his negligence.

(D) the injuries to the baker's nose, shoulder, and elbow, since all were caused by his negligence.

65. After taking and failing the state bar exam on 12 different occasions, an attorney decided to practice law without a license. Moving to a small town, he hung out a shingle that pro-claimed him to be an attorney and ran adver-tisements in the local newspaper referring to himself as an attorney. Having seen one of the advertisements, a client retained the attorney to defend him against a charge of driving while intoxicated. The attorney attempted to negotiate a plea to a lesser charge, but because he was unable to do so, a trial was held. The attorney appeared on behalf of the client, but the client was convicted. During the course of the trial, the district attorney became suspi-cious of the attorney's credentials. Following an investigation that the district attorney insti-tuted, the attorney was charged with violation of a state law that made it a crime to practice law without a license. He pleaded guilty and was sentenced to six months in jail.

If the client brings an action against the attor-ney for negligence in the way the attorney handled his defense, a court should find for

(A) the client, if the attorney failed to defend him the way a reasonable attorney would have done.

(B) the client, since it was unreasonable for the attorney to practice law without a license.

(C) the client, since the law that prohibited practicing law without a license was designed to keep unqualified persons from practicing law.

(D) the attorney, since not even a licensed attorney guarantees results.

66. The plaintiff was attending a nightclub at which a hypnotist was performing. Before the show began, a request was made for a volunteer to


67. A professor at City University has publicly stated her opposition to the consumption of alcohol. As a result, she is much in demand as a lecturer on the evils of intoxication. One of her slogans is, "When you drink, make it fruit juice." The company, a producer of packaged apple juice, invited the professor to participate in a promotional apple-juice-drinking contest that it was holding. The professor, who suc-ceeded in drinking one and one-half quarts of chilled apple juice without stopping for a breath, was declared the winner.

The City University student newspaper ran a photo of the professor holding the winner's trophy over a caption that read, "City U Prof. drinks them all under the table, winning first prize at the company's drinking contest." A story that described the fruit-juice drinking contest in detail appeared on the same page as the photo but some distance from it. The day after the photo and story appeared, an organi-zation that had hired the professor to lecture on the evils of alcohol canceled its contract with the professor because, after seeing the photo and caption in the newspaper, some members believed that the professor was a drinker of alcohol.

If the professor sues the newspaper for defa-mation, the court should instruct the jury that the statements made by the newspaper in the photo and caption were not defamatory if

(A) the reasonable person would have read the story.

(B) the organization members who saw the photo and caption did not read the story.

(C) a substantial group of respectable persons would have read the story.

(D) the reasonable person would not have read the story.

68. An athlete, a member of the United States 2002 Olympic team and a multiple gold medal winner, appeared in a television commercial. While films of his medal-winning perfor-mances showed in the background, the athlete ate a Power candy bar. He said that he had

assist the hypnotist with his act, and the plaintiff volunteered. She was taken backstage to the hypnotist's dressing room, where she and the hypnotist had a conversation. Following their conversation, the plaintiff agreed to participate in the hypnotist's show. During the course of the performance, the hypnotist attempted to hypnotize the plaintiff on stage. He then touched her skin with an electric cattle prod (a device that produces an electric shock and is used for handling stubborn cattle), causing her great pain and discomfort.

The plaintiff subsequently instituted an action against the hypnotist. In it, she alleged that he committed various intentional torts against her by touching her with the cattle prod. If one of the following facts were established at the trial, which one would be most helpful to the plaintiff in responding to the hypnotist's defense of consent?

(A) During the conversation in the hypno-tist's dressing room, the hypnotist stated that he was going to attempt to hypno-tize the plaintiff on stage, he was usu-ally successful in hypnotizing volunteers, and if he was successful, the cattle prod would cause her no discom-fort.

(B) During the conversation in the hypnotist's dressing room, the hypnotist promised to pay her $100 for participating in the show; he never did pay her; and, in fact, when he promised that he would pay her, he did not intend to do so.

(C) During the conversation in the hypnotist's dressing room, the hypnotist stated that the electric cattle prod produced a mild electric shock that would cause no real discomfort, when he knew that this was not true.

(D) When the plaintiff consented to partici-pating in the hypnotist's act, she did not know that contact with the electric cattle prod would result in great pain and dis-comfort.

TORTS QUESTIONS 649

been eating Power candy bars for energy ever since he was a child. He ended the commercial by smiling and saying, "Who knows? Maybe Power candy bars gave me the power to win."

The plaintiff purchased a case of 24 Power candy bars after seeing the commercial several times on television. After tasting one, however, he found he did not like the flavor. If the plaintiff brings an action against the athlete for misrepresentation, which of the following arguments will be most helpful in the athlete's defense?

(A) The athlete is not in the business of sell-ing Power candy bars.

(B) The script for the commercial was not written by the athlete.

(C) The plaintiff was not in privity with the athlete.

(D) The plaintiff has not sustained damage as the result of a false assertion by the ath-lete.

69. The breeder was a breeder of valuable thor-oughbred racehorses. A demolition contractor was hired by a builder to demolish a large office building located a half-mile from the breeder's farm. The demolition contractor was using dynamite for that purpose. On Thursday, the breeder telephoned the demolition contrac-tor to complain that the sounds of the explo-sions were frightening his animals. He said, "If anything happens to my horses, I'm plan-ning to hold you personally responsible." On Friday, sounds of the explosions so frightened one of the breeder's horses that she tried to jump over a fence, injuring herself in the pro-cess.

If the breeder institutes an action against the demolition contractor on a strict liability theory, which of the following would be the demolition contractor's most effective argu-ment in defense?

(A) The breeder's farm was not within the foreseeable zone of danger.

(B) The possibility that noise will frighten animals is not one of the risks that makes blasting an ultra-hazardous activ-ity.

(C) The demolition contractor used reason-able care in setting off the blast.

(D) The demolition contractor was working under contract to the builder.

70. The landlord was the owner of a small office building. Her own office was located on the ground floor of the building, the second floor was leased to a company, and the third and fourth floors were divided into smaller offices that were rented to various tenants on a month-to-month basis. Although the building was equipped with an elevator, occupants of the building frequently used a stairway over which the landlord retained control. One day, while one of the company's employees was walking down the stairs from the second floor, she cut her hand on a jagged part of the handrail that ran alongside the stairs. She com-menced an action against the landlord, alleging that the handrail was jagged because of negli-gence by the landlord.

Which of the following is an accurate state-ment about the case of the injured employee vs. the landlord?

(A) The company's employee was an invitee since she was an employee of one of the landlord's tenants.

(B) The company's employee was contribu-torily (or comparatively) negligent if the reasonable person in her situation would have noticed the jagged condition of the handrail and would have avoided being injured by it.

(C) The company's employee was an invitee, and she was contributorily (or compara-tively) negligent if the reasonable person in her situation would have noticed the jagged condition of the handrail and would have avoided being injured by it.


(D) The company's employee was neither an invitee nor was she contributorily (or comparatively) negligent.

71. A building inspector was employed by the city to conduct periodic inspections of business premises located in a territory to which she was assigned. The instruction manual that the city furnished to its inspectors contained instructions on testing draperies for fire-retardant properties. In large boldface letters, the manual stated, "NEVER EXPOSE DRAP-ERIES TO FLAME WHILE THEY ARE HANGING IN PLACE."

One of the businesses in the building inspec-tor's territory was a nightclub. On one of her inspections of the nightclub, the building inspector asked the manager of the business whether the window draperies were fire- retardant as required by the city's building code. The manager responded that they were. Although the building inspector was familiar with the instructions in the manual, she was in a hurry. Taking a cigarette lighter from her pocket, she held its flame under one of the draperies where it was hanging. The drapery caught fire, which spread, completely destroy-ing the building. A passerby was injured in the fire.

If the passerby brings an action for damages against the city on a theory of respondeat superior, the passerby will

(A) lose, since the building inspector was acting in violation of specific instruc-tions from her employer.

(B) lose, if a building inspector's duties involve the exercise of unsupervised dis-cretion.

(C) win, if the building inspector was negli-gent.

(D) win, whether or not the building inspec-tor was negligent.

72. A statute provides that every motor vehicle must be equipped with an ignition lock, and that it shall be a misdemeanor for any person

to park a motor vehicle without locking it and removing the ignition key. The defendant left his car parked on a public street with the igni-tion key in it, in violation of the statute. A 14-year-old boy saw the key in the ignition and stole the car. While driving it, he struck and injured the plaintiff. In an action by the plaintiff against the defendant, the plaintiff will

(A) win, if but only if it was unreasonable for the defendant to leave his keys in the ignition.

(B) win, if, but only if, the statute was designed to prevent accidents involving stolen cars.

(C) lose, unless the boy's intervention is held to have been foreseeable.

(D) lose, if the boy's conduct is found to be an intervention that proximately caused the injury.

73. The state governor was attending a major league baseball game when a member of the home team hit a home run. The governor jumped to his feet and cheered loudly, along with the rest of the crowd. A freelance photog-rapher took his picture while he was cheering. When the photograph was developed, the pho-tographer had it imprinted on targets. With toy plastic darts, the photographer marketed them under the name of "The Cheering Governor Dart Board Game" and sold several thousand. The governor sued the photographer for inva-sion of privacy.

On which of the following theories is the gov-ernor most likely to be successful in his action against the photographer?

(A) Appropriation of identity.

(B) Public disclosure.

(C) Intrusion.

(D) False light.

74. A professor was disturbed by the fact that stu-dents frequently left the room during her lec-tures, so she instructed her teaching assistant

TORTS QUESTIONS 651

to lock the door of her classroom 10 minutes after the class began and not to unlock it again until 10 minutes before the class was sched-uled to end. On Thursday, a student attended the professor's four o'clock class. By five minutes past four, the student was sound asleep in his seat. At ten minutes past four, the teaching assistant locked the classroom door as instructed by the professor, unlocking it at ten minutes to five. When the class ended at five, the student, who had slept through the class, was awakened by a classmate and left the room. The classroom had been painted the previous day with a paint to which the student was allergic, although neither the professor, the teaching assistant, nor the student knew about it. As a result of his exposure to the paint in the room, the student developed aller-gic symptoms later that day that required hos-pitalization.

If the student institutes an action for false imprisonment against the professor, who will win?

(A) The student, because his illness resulted from the professor's intentional confine-ment of him.

(B) The student, since a professor owes her students a duty to refrain from exposing them to unreasonable risks of foresee-able harm.

(C) The professor, since she did not know with substantial certainty that harm would result from locking the door.

(D) The professor, since she did not confine the student against his will.

75. The Lovers of God is a small religious sect that had its origins in colonial America. Origi-nally, members of the sect believed that physi-cal acts of love were holy. During the 19th century, they were prosecuted for engaging in religious rituals that involved public nudity and group sex. At the start of the 20th century, the leaders of the sect revised its philosophy and prohibited the sex acts that they had for-merly encouraged. Some non-members of the sect continue to associate it with illicit sex and

continue to call its members "Makers," a term coined by 19th-century journalists who cam-paigned against the sect.

A minister ordained in the Church of Love, a religious organization that is not associated in any way with the Lovers, delivered the bene-diction at the year's first meeting of the Town Council of Smallville. The following day, the Smallville Globe, a daily newspaper, printed an article about the meeting. The article referred to the minister as "a minister of the Church of Love, better known as the Makers (Lovers of God)." The minister instituted an action against the Smallville Globe, alleging that the reference to him as a minister of "the Makers (Lovers of God)" was defamatory.

In his lawsuit, the minister must prove that the Smallville Globe

(A) knew, or that the reasonable publisher would have known, that the minister was not affiliated with the Lovers of God.

entertained serious doubts about whether or not the minister was affiliated with the Lovers of God.

knew that "the Makers (Lovers of God)" were associated with shame or disgrace in the minds of some readers.

made the statement, but the minister is not required to prove fault since the minister is not a public person.

76. The company was in the business of develop-ing and manufacturing machinery used in other industries. Having developed a zoobie machine for shaping and stamping widgets, the company manufactured and sold seven of them to widget companies throughout the United States. One of the zoobie machines manufac-tured by the company was sold to the First Widget Company, which used it without prob-lems for three years. At the end of that time, however, First redesigned its widgets. Since the zoobie machine that it had purchased from the company was inadequate for the produc-tion of First's improved widget, First sold the


machine to Second, a company specializing in selling products which, since they were slightly out of date, could be produced and sold at low prices.

The company learned that the finnegan pins in its zoobie machines tended to wear out after three or four years, making the machines dangerous. It contacted the First Widget Company, offering to replace the worn part for $1,000, which was what the repair would cost the company to make. When First advised the company that the machine had been sold to Second, the company contacted Second and made the same offer. Because Second did not want to spend the money, however, it refused the company's offer. Two months later, a Sec-ond employee was injured when the worn part in the zoobie machine caused it to explode.

The employee instituted an action against the company on a theory of strict liability in tort. The jury specifically found that the finnegan pin made the zoobie machine defective when sold by the company to First, and that it had not been substantially changed since then. The jury should find in favor of

the employee, only if the employee's compensation statutes prevent her from suing her employer.

the employee, if the defect in the zoobie machine was a proximate cause of her injury.

the company, if the machine had been removed from the stream of commerce when sold by First to Second.

the company, only if Second's refusal to spend $1,000 to repair the machine was unreasonable.

77. A driver was driving her automobile on Coun-try Road in the rain when she rounded a bend and saw a cow standing directly in her path. She immediately jammed on her brakes and pulled the steering wheel to the right in an attempt to avoid striking the cow. As a result, she lost control of her car, which skidded off the road and into the homeowner's yard. The

homeowner, who was in the process of install-ing an automatic watering system, had dug a trench across the yard for pipes. When the wheels of the driver's car hit the trench, the car stopped abruptly, throwing the driver for-ward into the windshield and causing her to be injured.

In an action by the driver against the home-owner for negligence, will a court decide that the homeowner owed the driver a duty of rea-sonable care?

(A) Yes, if it was foreseeable that persons driving on Country Road might lose control of their vehicles and skid into the homeowner's yard.

(B) Yes, if, but only if, the cow was in the road because of some conduct by the homeowner.

(C) No, because it was not unreasonable for the homeowner to dig a trench on his own land.

(D) No, because the driver was a trespasser.

78. A carpenter who was building a house on his own property had posted a sign that said, "No Trespassing." He was working on the frame-work of his roof when he found that he had brought the wrong hammer onto the roof with him. Without looking to see if anyone was around, he tossed the hammer to the ground, shouting, "Heads up!"

A truck driver was assigned to deliver lumber on the street where the carpenter was building the house. The carpenter had not ordered lum-ber, but when the truck driver saw the carpen-ter working on the roof of an unfinished house, he incorrectly assumed that the carpen-ter was the person to whom he was supposed to deliver the lumber. He parked his truck at the curb and was walking across the carpen-ter's property toward the unfinished house to talk to the carpenter about the delivery when he was struck in the head by the hammer thrown by the carpenter. The truck driver cried

TORTS QUESTIONS 653

out in pain and then fell to the ground, uncon-scious and bleeding. The carpenter saw it hap-pen, but he merely shrugged and continued working.

A moment later, a passerby who had seen what happened called an ambulance. When it arrived, the truck driver was still unconscious. The ambulance driver loaded the truck driver into the ambulance and began driving to the hospital. Because of the ambulance driver's negligent driving, the ambulance struck a pole. The truck driver was killed in the crash.

The representative of the truck driver's estate instituted an appropriate action against the carpenter, alleging that the carpenter's failure to call for medical assistance after he saw the ham-mer strike the truck driver was negligence. Which of the following comments is most ac-curate regarding that allegation?

(A) The carpenter owed the truck driver no duty to call for help if the truck driver was a trespasser.

(B) The truck driver's estate is entitled to punitive (exemplary) damages if the carpenter was substantially certain that there was a possibility of harm resulting from his failure to act.

(C) The carpenter's failure to call for medical aid was not a factual cause of harm to the truck driver since someone did call a moment later.

(D) the truck driver was an invitee since he was a user of the public street who had entered upon adjacent private land.

79. The company had been operating a soap fac-tory in the county for 50 years. When the fac-tory was first opened, the nearest residential settlement was the town, six miles away. Because the factory has been in existence for 50 years, county zoning ordinances were drafted to allow its continued operation. In the past 50 years, however, the town has expanded in size. Now the edge of town is only a quar-ter of a mile from the company's factory. On days when the wind is blowing from the direc-

tion of the factory, residents of the town are annoyed by the noxious odor emanating from the factory chimneys. A homeowner, who moved to the town three years ago, has asked the town attorney to seek an injunction to pro-hibit the company from emitting foul odors, but the town attorney has refused.

If the homeowner sues the company for dam-ages resulting from the odors on a theory of public nuisance, which of the following will be the company's most effective argument in defense?

(A) The company's operation preceded the growth of the town.

(B) The homeowner came to the nuisance.

(C) The homeowner's damages are no differ-ent from those of other residents of the town.

(D) A lawful activity cannot constitute a pub-lic nuisance.

80. The defendant and the plaintiff had been friends for years and worked in the same office. Ever since they were children, they had enjoyed playing practical jokes on each other. Frequently, they would spend hours together, laughing about the tricks they had played on each other. One day, planning to have some fun with the plaintiff, the defendant bought a large rubber spider from a toy store. Knowing that the plaintiff was terrified of spiders, the defendant came into work early and placed the toy spider in the top drawer of the plaintiffs desk. Later, when the plaintiff arrived at work, he opened his top drawer to get out a letter opener and saw the rubber spider. Believing it to be real and terrified that it would bite him, the plaintiff screamed in fear, fainted, and fell to the floor. As he fell, he struck his head on the corner of his desk, sustaining a serious fracture of the skull.

If the plaintiff asserts a claim for assault against the defendant for the injury that he sustained in the fall, which of the following arguments would be most effective in the defendant's defense?


The plaintiff's fear of being bitten by a spider was not apprehension of a bat-tery.

The reasonable person in the plaintiff's position would not have become appre-hensive at the sight of a spider.

The plaintiff impliedly consented to the prank by engaging in a course of practi-cal joking with the defendant.

The defendant was not substantially cer-tain that the plaintiff would be injured as a result of the joke.

81. The plaintiff commenced an action against the defendant, and proved the following:

The defendant and his friend were both sling-shot enthusiasts known for the accuracy of their aim. They were planning to compete against each other in a slingshot tournament to be held on Sunday. On Saturday, without con-sulting the other, each went independently to the woods outside of town to practice his or her skill. Since not many people frequented the area, the defendant and his friend were both somewhat casual about their targets, each shooting at anything that moved without prop-erly checking to make sure of what they were shooting at. The plaintiff, who had gone to the woods to read in solitude, was struck by a steel ball shot from one of the slingshots. Since the defendant and his friend were using the same kind of ammunition, it is impossible to determine which of them fired the ball that struck the plaintiff, but it is certain that one of them did.

If the court finds for the defendant, it will probably be for which one of the following reasons?

(A) The defendant did not owe the plaintiff a duty of reasonable care since not many people frequented the area.

(B) There is no evidence that the defendant acted unreasonably.

(C) The evidence does not establish that the defendant's conduct was a factual cause of the injury.

(D) Even if the defendant's conduct was a factual cause of the injury, it is impos-sible to tell whether it was a legal cause of the injury.

82. Statutes in the state provide that persons under the age of 20 years are incompetent to enter into contracts, may not marry without the writ-ten consent of their parents, may not lawfully purchase alcoholic beverages, and are subject to local curfew regulations. A 19-year-old girl was fishing for pleasure from a pier in the state when she accidentally struck a fisherman in the eye with a fishhook on the end of her line. The fisherman commenced a negligence action against the girl. The trial court should find that the girl was negligent

(A) if she failed to act like a reasonable 19-year-old with her experience and intelligence, because under the laws of the state, she is still a child.

(B) if she failed to act like a reasonable adult, because fishing is an adult activity.

(C) if she failed to act like a reasonable adult, because at 19 she is old enough to be treated as an adult by the law of torts.

(D) because the risk of injury caused by her use of the fishhook outweighs the utility of fishing for pleasure.

83. The company manufactures several kinds of cooked-fruit desserts, which are marketed in packages labeled "Person Pleasers." Each package consists of an aluminum can contain-ing cooked fruit packed in syrup and a plastic spoon. The aluminum can is equipped with an "easy-open" lid that can be removed by pull-ing an aluminum ring fastened to the top of the can.

One morning on his way to work, a man pur-chased a package of Person Pleasers from the grocery store. Later that day, while eating lunch, the man opened the package, removed the lid from the aluminum can, and began

TORTS QUESTIONS 655

eating the contents with a spoon. After con-suming more than half of the product, the man noticed parts of a rat's tail mixed with the cooked fruit.

If the man asserts a claim against the company on the theory of strict liability in tort, which of the following would be the man's most effec-tive argument?

(A) The presence of a rat's tail was a defect that made the product unreasonably dan-gerous.

(B) The man was in horizontal privity with the grocery store, and there is no need for vertical privity.

(C) The labeling and packaging of Person Pleasers implied a promise that the con-tents of the package purchased by the man were fit for human consumption.

(D) The doctrine of res ipso loquitur applies, since the product was sold in a sealed package.

84. The driver was driving her car north on Ocean Boulevard when the car in front of hers stopped suddenly to avoid striking a cat that had run into the roadway. Since there were no cars coming toward her, the driver swerved over the centerline and into the southbound lane. When she did so, she struck and injured a nine-year-old boy who was walking a bicycle south in the southbound lane. Because the sun was in her eyes, the driver did not see the boy until her car struck him.

Half an hour before the accident, the boy's mother told the boy that she did not want him riding his bicycle on Ocean Boulevard because it was a heavily travelled roadway with no sidewalks. She gave him permission, however, to walk his bicycle carefully along the road shoulder.

As a result of the accident, the boy sustained brain damage that will make it impossible for him to support, feed, or care for himself for the rest of his life. The jurisdiction applies the all-or-nothing rule of contributory negligence.

If the boy's mother asserts a negligence claim against the driver for the medical bills that she incurred as a result of the boy's injury, which of the following may the driver assert in defense?

(A) The accident resulted from the boy's neg-ligence.

(B) The accident resulted from the boy's mother's negligence.

(C) The accident resulted from both the boy's and his mother's negligence.

(D) The driver cannot claim that either the boy or his mother was negligent.

85. The defendant was towing a small travel-trailer with his automobile when the hitch that attached the trailer to the car broke, causing the trailer to collide with the vehicle of the plaintiff, which was parked at the curb. A stat-ute in the jurisdiction provides that "No person shall operate a motor vehicle or trailer on the roads of this state unless said motor vehicle or trailer is covered by a valid policy of liability insurance." The defendant was in violation of that statute in that he knew that his trailer was not covered by a valid policy of liability insur-ance at the time of the accident. Is his viola-tion of statute relevant to the issue of negligence in an action brought against him by the plaintiff?

Yes, because the statute was designed to protect the victims of automobile and trailer accidents.

Yes, because the reasonable person does not knowingly violate a statute.

No, because the law encourages the pur-chase of automobile insurance and therefore absolutely prohibits disclosure to the jury about whether or not a defendant was insured.

(D) No, because compliance with the statute does not prevent automobile or trailer accidents.

86. One night, police officers received a message that a burglary was in progress at a grocery


store. Rushing to the location, they discovered that the back door of the store was open. Entering cautiously, they saw two burglars hiding in the storage room. In the ensuing attempt to make an arrest in the dark, the officers knocked over several stacks of mer-chandise, including cases of bottled soda-pop manufactured by the company. This caused minute cracks in all the bottles. The following day, store employees cleaned up the mess, restacking the cases of soda-pop. Approxi-mately one week later, six of the cases were placed on display in the store. A woman pur-chased one of the bottles from these six cases but did not notice the minute crack in it.

That evening, the woman was placing the bottle on the dinner table when the bottle exploded because of the crack in it, sending fragments of glass flying in all directions. Both the woman and her daughter were cut by the flying glass.

In an action by the woman against the com-pany, may she successfully rely on the doc-trine of res ipsa loquitur?

(A) Yes, because it applies in exploding bottle cases.

(B) Yes, because the company was in exclu-sive control of the bottling process.

(C) No, because the bottles were knocked over by the officers.

(D) No, because the bottles were not in the company's possession at the time the woman's injury occurred.

87. After several neighboring stores had been bur-glarized, a store owner decided to take steps to protect her own grocery store against burglars. She purchased an alarm bell and wired it to the store cash register so that it would make a loud noise if the register was forced open. In addition, she connected a canister of X-Eleven gas to the system so that as the alarm went off, the gas would be discharged into the area around the cash register. The store owner had read a government report that indicated that X-Eleven had no harmful effects, but that a

person exposed to it would become tempo-rarily disoriented. She hoped that if a burglar attempted to steal from her cash register, the combination of disorientation produced by the gas and the loud noise produced by the bell would frighten the burglar away. That night, a burglar broke into the store owner's store. When he attempted to open her cash register, the alarm bell began to sound and the canister discharged X-Eleven gas into the area. The burglar became frightened and ran away, but because he was unusually sensitive to the ingredients of X-Eleven gas, exposure to it permanently damaged his vision.

If the burglar asserts a claim against the store owner for his damages, the court should find for

(A) the burglar, if the alarm system created by the store owner constituted a trap.

(B) the burglar, because a human being's vision is of greater value than mere property.

(C) the store owner, because no duty is owed to a trespasser who enters for the pur-pose of committing a crime.

(D) the store owner, if she used reasonable force to defend her property.

88. One day, while a well-known collector was visiting the dealer's art gallery, the dealer showed him a new painting called The Petti-

coats that she had received that day.

"The artist didn't sign it," the dealer said. "But I'm sure it was painted by Degas. That would make it worth at least $250,000."

The collector answered, "It's by Degas, all right. It's worth every cent you're asking. But I already have several paintings by Degas in my collection, and I don't need another."

The buyer, who was browsing in the dealer's gallery, overheard the conversation between the collector and the dealer. The buyer knew very little about art, but had just inherited a large sum of money. Because he knew that the

TORTS QUESTIONS 657

collector and the dealer were art experts, he believed what he heard them saying. After the collector left the gallery, the buyer asked the dealer if she would accept $200,000 for The Petticoats. The dealer said that she would not take anything less than $250,000. After nego-tiation, the buyer purchased it for $225,000. The buyer subsequently learned that The Petti-coats had not been painted by Degas and was worth only $600.

If the buyer asserts a tort claim for misrepre-sentation against the dealer, which of the fol-lowing would be the dealer's most effective argument in defense?

(A) A statement of opinion cannot be con-strued as a misrepresentation, since there is no such thing as a false idea.

(B) The buyer did not sustain damage as a result of his reliance on a statement by the dealer.

(C) The dealer did not know that the buyer would rely on the statements that she made to the collector.

(D) The value of any work of art is a matter of opinion.

89. As a joke, the defendant knocked on the plain-tiffs door wearing a police officer's uniform that he had rented from a costume shop. When the plaintiff came to the door, the defendant told her that her husband had just been killed in a highway accident, and that she would have to come with him to claim the body. The plaintiff, who recognized the defendant and knew that he was not a police officer, slammed the door in his face and told him to leave her alone. She was outraged at his attempt to play such a joke on her, but she sustained no physical or mental injury.

If the plaintiff asserts a claim against the defendant for intentional infliction of emo-tional distress, the court should find for

(A) the plaintiff, because the defendant's con-duct exceeded all bounds normally tol-erated by decent society.

(B) the plaintiff, because the defendant's con-duct was calculated to cause severe mental suffering.

(C) the defendant, because his intention was merely to play a joke on the plaintiff.

(D) the defendant, because the plaintiff sus-tained no physical or mental injury as a result of the defendant's conduct.

90. Which of the following most correctly states the duty owed to customers by a druggist who dispenses prescription drugs?

(A) To know all the harmful side effects of the drugs being dispensed.

(B) To warn of all the harmful side effects of the drugs being dispensed.

(C) To sell only those drugs that are not defective.

(D) To make whatever inspection of the drugs is reasonable before dispensing them.

91. A man and his friend were members of the same golf club and frequently played golf together. One day, after meeting in the club's cocktail lounge, they argued about which of them could hit a golf ball farthest. To settle the dispute, they agreed to a contest and wager. Each handed $100 to a caddie who offered to hold the stakes. Their understanding was that each would hit a single golf ball, and that the one whose ball traveled the greatest distance would win the bet. The man and his friend went together to the club's driving range. Both struck their golf balls at the same time. A moment later, they heard a shout coming from the far end of the driving range. Upon investi-gating, they found the plaintiff, another mem-ber of the club, lying unconscious on the ground with a single lump on his head. Lying beside him were the balls driven by the man and his friend. The plaintiff subsequently asserted a claim for damages against the man and his friend. He succeeded in proving that the ball that struck him had been driven by one of them, but he was unable to show which one. The court found that both the man and


his friend had acted negligently, and that they were involved in a concert of action.

Which of the following statements is most correct about the relationship of the parties?

Either the man or his friend may avoid liability by proving that his ball was not the one that struck the plaintiff.

Neither the man's nor his friend's con-duct was a factual cause of harm because each induced the other's con-duct to be a substantial factor in produc-ing the plaintiff's injury.

The man's conduct and his friend's con-duct were legal causes of harm, but nei-ther was a factual cause of harm.

The man and his friend may each be held vicariously liable for the other's con-duct.

92. A company is the manufacturer of a drug known as HLP, which is used in the treatment of certain cancers. Because HLP induces an allergic reaction in about 10 percent of the people treated with it, the company has sent every doctor in the United States a brochure describing the possible side effects and sug-gesting methods for determining in advance whether a patient is allergic to the drug. In addition, the company has published warnings about the drug in The Physician's Medical

Guide, a book that describes the effects of all prescription drugs sold in the United States and which is part of the library of virtually every practicing physician. A patient was being treated by a doctor for cancer of the epiframmis gland. In the course of treatment, the doctor prescribed the use of HLP. Although the doctor had read the company brochure and was aware of the possibility of an allergic reaction, she did not take any steps to deter-mine whether the patient was allergic to the drug. Because the patient was allergic to HLP, its use caused her to lose the sight of one of her eyes.

The patient subsequently retained an attorney to commence a malpractice action against the

doctor for the damages that resulted from her allergic reaction to HLP. Although the statute of limitations on such an action fixed a period of one year, more than one year passed before the attorney commenced an action against the doctor. As a result, no such action could ever be brought. The patient eventually sued the attorney, alleging that the attorney's failure to bring the action on time was negligent.

Which one of the following additional facts or inferences, if it was the only one true, would be most effective as part of the attorney's defense?

(A) The attorney had been admitted to the bar only three weeks before being retained by the patient.

(B) The attorney honestly believed that the statutory period of limitations for the commencement of medical malpractice actions was two years.

(C) After discussing the case with the doc-tor's attorney, the attorney came to the conclusion that the patient's case against the doctor was weak.

(D) Cancer of the epiframmis gland would have led to the patient's death within a few months if left untreated, and HLP was the only drug available for its treat-ment.

93. The defendant was an elderly man who lived in a house with a swimming pool in the back-yard. Although the defendant enjoyed swim-ming in the pool, his age and physical infirmity made him unable to clean or main-tain the pool himself. Instead, he agreed to allow his 14-year-old neighbor, the plaintiff, to swim in the pool anytime she wanted without notifying the defendant or asking his permis-sion, in exchange for the plaintiff's services in cleaning and maintaining the pool.

On Friday morning, the plaintiff thoroughly cleaned the defendant's pool. Later that day, the defendant drained all the water from the pool and did not refill it. Saturday morning, the plaintiff woke up early and decided to go

TORTS QUESTIONS 659

swimming in the defendant's pool. She put on her bathing suit and went into the defendant's yard, running onto the diving board of his swimming pool and diving in without looking first. The plaintiff was severely injured when she fell to the concrete bottom of the empty swimming pool.

If the plaintiff asserts a negligence claim for her injuries against the defendant in a jurisdic-tion that has a pure comparative negligence statute, the court should find for

(A) the plaintiff, because the pool constituted an attractive nuisance.

(B) the defendant, because the plaintiff was a trespasser.

(C) the plaintiff, if it was unreasonable for the defendant to drain the pool without warning her.

(D) the defendant, if the reasonable person in the plaintiff's position would have known the risk of diving into an empty swimming pool.

94. A company was the owner of electrical gener-ating equipment located on a parcel of real estate in the City of Haven. Electrical power lines ran from the equipment to a 60-foot power pole also located on the realty. Spikes had been driven into the pole every 12 inches for use as steps by persons climbing the pole to service the wires fastened to it. Twelve feet above the ground, a wooden platform was mounted on the pole, with a hole in its center so that a person climbing up the pole could climb through the hole onto the platform.

The playground of Haven Grammar School was directly adjacent to the company's prop-erty, separated from it by a 6-foot wire mesh fence. The company officials were aware that a large gaping hole in this fence had existed for approximately one year, and that children frequently crept through the hole to play on the company's property.

One morning, the plaintiff, a 12-year-old stu-dent at the Haven Grammar School, entered

the company's property through the hole in the fence. The plaintiff began climbing the spikes that had been driven into the pole. When she reached the wooden platform located 12 feet aboveground, she put her head through the hole in its center to see what was above it. Her head came into contact with a high-voltage wire that had been strung over the platform, causing her to sustain serious injuries.

In a negligence action by the plaintiff against the company, which one of the following additional facts or inferences, if it were the only one true, would provide the company with its most effective argument in defense?

The plaintiff entered the premises without the company's permission.

To the company's knowledge, no child had ever before attempted to climb the pole.

The plaintiff was old enough to compre-hend the dangers associated with an attempt to climb the pole.

The fence that separated the company's property from the schoolyard was located completely on realty occupied by the Haven Grammar School.

95. A company was a manufacturer of explosives. Several cases of explosives that the company had shipped to a buyer in another state were being stored by a warehouse pending delivery. While the explosives were there, the ware-house facility was struck by lightning, causing the explosives to explode. The cases contain-ing the explosives did not bear any description of their contents. If the warehouse employees knew that the cases contained explosives, they would have stored them in a way that would have prevented the explosion. A homeowner who sustained property damage as a result of the explosion has asserted a claim against the company.

Which of the following facts or inferences, if it were the only one true, would provide the company with its most effective argument in defense?


(A) The company did not do anything unreasonable or irresponsible in manufacturing, packaging, or labeling its product.

(B) When the company shipped the cases of explosives, they had been properly labeled with firmly affixed labels identi-fying their contents, but the labels had somehow come off in transit.

(C) The company had assigned an employee to make sure that all cases of explosives shipped by the company were properly labeled, but the employee had forgotten to inspect this shipment.

(D) The storage of explosives by the ware-house was an ultra-hazardous activity.

96. In which one of the following cases is the defendant LEAST likely to be held liable for battery?

(A) The defendant is a six-year-old boy who shot the plaintiff with a bow and arrow because he wanted to see if she would shout when the arrow hit her.

(B) The defendant is an insane woman who struck the plaintiff because she believed the plaintiff to be a horse that was attacking her.

(C) The defendant is a man who was on a date with the plaintiff, and who sud-denly took her into his arms and kissed her because he believed that she wanted to be overwhelmed by his passion.

(D) The defendant is a mentally disabled adult who threw a stone at the plaintiff and struck her with it because he believed that the plaintiff was going to hurt him.

97. During Jimmy James's 70-year career in the entertainment business, the comedian's trade-mark was always a cigar that he clenched between his teeth or held in his hand while delivering his jokes. As part of an interview on a television show, the interviewer asked the comedian whether he really smoked cigars. The comedian replied, "Sure. I always smoke Georgia Cigars. They're the best cigars made."

The following day, Georgia Cigar Company, the manufacturer of Georgia Cigars, placed several advertisements in newspapers. All the advertisements said, "Jimmy James says Georgia Cigars are the best cigars made. He always smokes Georgia Cigars, and you should too."

If the comedian asserts a claim against Georgia Cigar Company for invasion of pri-vacy by misappropriation of identity, the court should find for

(A) Georgia Cigar Company, because the comedian had in fact made the state-ment that appeared in the advertisement.

(B) Georgia Cigar Company, because the advertisement constituted a constitution-ally protected form of commercial expression.

(C) the comedian, because when he made the statement on the television show, it was unforeseeable that Georgia Cigar Com-pany would use it in its advertising.

(D) the comedian, because Georgia Cigar Company used his name to sell its prod-uct without his permission.

98. The defendant grew fruit trees on her farm outside the village. In addition, she operated a fruit store in the village. Every day during the harvest season, in a trailer that she towed with her pickup truck, she hauled fresh fruit from her orchards to her store. One day, as she was towing the trailer filled with fruit up a hill on her way to the village, the hitch that fastened the trailer to the pickup truck failed, permitting the trailer to break loose and roll down the hill, striking and damaging the home of the plaintiff. Subsequent investigation revealed that the hitch failed because one of its parts was made of defective steel.

If the plaintiff asserts a claim against the defendant for damage to his house, the court's decision is most likely to turn on whether

(A) the defendant acted reasonably.

TORTS QUESTIONS 661

(B) the hitch was defective in manufacture or in design.

(C) the defendant was a merchant.

(D) the plaintiff could have foreseen the damage.

99. The pilot was a helicopter pilot employed by a radio station as a traffic reporter. One day, while flying in his helicopter, he hovered over the home of a woman. Using powerful binocu-lars, he looked into her window to watch her while she was exercising in the nude. If the woman institutes an action against him, which of the following facts or inferences must she establish to make out a prima facie case of trespass to land?

(A) The altitude at which the pilot hovered over her house.

(B) Damage to her land, or to her right to enjoy it, that resulted from the pilot's conduct.

(C) That she had a reasonable expectation of privacy while exercising nude in her own home.

(D) That she was in lawful possession of the premises at the time that the pilot hov-ered over her house.

100. When a woman discovered that her car had been stolen, she reported the theft to the police. Then, while she was walking home from the police station, she saw her car in a homeowner's driveway, where the person who stole it had abandoned it after using it in a bank robbery. When she began walking toward the automobile, the homeowner ran out of his house shouting, "Hey, you! Where do you think you're going?" The woman explained that she was attempting to retrieve her car, but the homeowner pushed her, say-ing, "Get off my land." The woman, who sustained no physical or mental injury as a result of the homeowner's contact with her, got into her car and drove it away. The woman subsequently commenced a battery action against the homeowner. If, in response

to the woman's claim, the homeowner asserts the privilege to defend realty, the court should find for

(A) the homeowner, because the woman was not in hot pursuit of her car when she entered the homeowner's realty.

(B) the homeowner, because the woman was not injured as a result of his contact with her.

(C) the woman, because force is never per-mitted in defense of realty.

(D) the woman, because she was privileged to enter and retake her automobile.

101. A husband asserted a claim against a railroad company employee, alleging that statements made by the employee were misrepresenta-tions. Attorneys for both parties agreed to the following facts:

The husband's wife died when she jumped in front of a train owned by the railroad. Two weeks later, the railroad employee contacted the husband. The employee said that although the railroad was not legally responsible for the wife's death, the railroad was willing to pay $1,000 in full settlement of all claims arising from the wife's death. When the husband said he wanted to speak with an attorney, the employee told him that if an attorney got involved, the railroad would not pay anything because the husband "had no legal claim." The husband doubted that the employee was telling the truth, so he consulted with an attorney. The attorney didn't think the husband had a claim and declined representation. Consequently, the husband accepted the $1,000 and executed a general release. The husband then retained another attorney and instituted a wrongful death action against the railroad. The court dismissed, citing the release.

Which of the following additional facts must the husband prove to establish a cause of action for misrepresentation against the employee?


(A) If the husband's wrongful death suit was not dismissed, it would have resulted in a judgment for the husband in excess of $1,000.

(B) When the employee made the statements to the husband, the employee knew or should have known that the statements were false.

(C) The husband's wrongful death suit would have resulted in a judgment for the husband in excess of $1,000, and the employee knew or should have known the statements were false.

(D) The husband doesn't have to prove that his lawsuit would have resulted in a judgment in excess of $1,000, or that the employee knew or should have known his statements were false.

102. The company, a manufacturer of dog whistles, operated a factory for that purpose. The whistles manufactured by the company issued a sound so high-pitched that it could not be heard by human ears; only dogs could hear it. For this reason, before leaving the assembly line, each whistle was tested by a machine that blew air through it and metered the sound that it made. After the company's factory had been in operation for 15 years, the breeder moved onto the adjoining realty and began operating a kennel. The breeder bred and raised pedigreed dogs and boarded customers' dogs as part of his business. Two weeks after moving onto the realty, the breeder discovered that the dogs in his kennel were being disturbed by the testing of dog whistles in the company's factory. He wrote the company a letter advising it that the com-pany's operation was making it impossible for the breeder to remain in business, and demanding that the company change its methods so that the sounds of the whistles would not upset the breeder's dogs. When the company refused, the breeder commenced a private nuisance action against it. Which of the following would be the company's most effective argument in defense against the breeder's claim?

(A) The operation of a dog-whistle factory is a lawful business.

(B) The breeder came to the nuisance.

(C) The company did not intend to cause harm to the breeder or to the breeder's business.

(D) The breeder's damage resulted from the fact that the breeder was making an unusually sensitive use of the land.

103. The plaintiff purchased a bottle of dishwash-ing detergent from the defendant, a self-service supermarket. The plaintiff selected the product from the defendant's shelves, carried it to a checkout counter, and paid the cashier. The plaintiff then placed the bottle in a bag furnished by the defendant and carried it home. The product purchased by the plaintiff was manufactured by a local company. After using the product for washing dishes, the plaintiff experienced a serious rash on his hands and wrists as the result of an allergic reaction to a chemical in the product.

If the plaintiff asserts a claim against the defendant for breach of express warranty, a court should find for

(A) the plaintiff, if the label stated that the product would not harm the skin of a user.

(B) the plaintiff, if the product was unfit for ordinary use.

(C) the defendant, if the plaintiff's injury resulted from reliance on a statement that the company caused to be printed on the label of its product.

(D) the defendant, if no employee of the defendant knew what statements were contained on the company's detergent label.

104. The defendant bought a new sailboat, although he had never been on one before. When he purchased the boat, the salesman told him to be sure to get boating instruction before attempting to use the boat because this particular model required considerable skill

TORTS QUESTIONS 663

to operate. Although the defendant had not received any instruction at all, and although he heard a weather report that warned of severe storms, he decided to take the boat out for a test sail by himself. A few minutes after he left the dock with his boat, the storm struck, causing high and dangerous waves. Fearful that the defendant would be killed at sea, the defendant's wife stood crying on the shore. The plaintiff, an experienced sailor who knew the defendant and the defendant's wife, heard the defendant's wife crying about her husband's predicament. Without saying anything to the defendant's wife, the plaintiff went out in his own boat to look for the defendant. The defendant returned unhurt an hour later, but the plaintiff's boat capsized in the storm, severely damaging his boat and causing the plaintiff to sustain injury.

If the plaintiff asserts a claim against the defendant for the damage that he sustained, the court should find for

(A) the plaintiff, if his damage resulted from the defendant's failure to act reason-ably.

(B) the plaintiff, because a rescuer is entitled to indemnity from the person whom he or she was attempting to rescue.

(C) the defendant, because the plaintiff was an officious intermeddler.

(D) the defendant, unless the defendant was aware that the plaintiff would attempt to rescue him.

105. The defendant was driving to visit her fiancé, who was staying in Smallville, about 50 miles away. Before she left, her friend asked her to deliver a small package to someone in Smallville. The package contained a bottle of caustic chemicals. Because she was afraid that the defendant would refuse to carry it if she knew its contents, the friend wrapped the package in brown paper and did not tell the defendant what was in it. The defendant placed the package in the glove compartment of her car and began driving to Smallville. Along the way, the defendant saw the plain-

tiff hitchhiking by the side of the road. Since they had gone to high school together, the defendant offered the plaintiff a ride. While the plaintiff was sitting in the front seat beside the defendant, the package in the glove compartment began to leak, dripping liquid onto the plaintiff's trousers. Without saying anything to the defendant, the plaintiff opened the glove compartment and removed the wet package. As soon as the caustic liq-uid touched the plaintiff's hand, it burned his skin severely.

If the plaintiff commences a negligence action against the defendant in a jurisdiction that has no automobile guest statute and that applies the all-or-nothing rule of contributory negligence, which of the following would be the defendant's most effective argument in defense?

(A) The plaintiff was a mere licensee and was entitled only to a warning of those conditions that the defendant knew were dangerous.

(B) The defendant could not have known or anticipated that the contents of the package would cause harm to a passen-ger in her car.

(C) The plaintiff was contributorily negli-gent in touching the wet package.

(D) The plaintiff assumed the risk of injury resulting from contact with the wet package.

106. The plaintiff, a photographer's model, decided to have a rosebud tattooed on her shoulder in the hope that it would increase the demand for and the value of her model-ing services. She went to the defendant, a tattoo artist, for that purpose. After the defen-dant explained that tattooing involved the insertion of needles into the skin and was therefore a painful process, the plaintiff selected the tattoo that she wanted and told the defendant to proceed. While the defen-dant was tattooing the plaintiff's shoulder, the tattoo needle broke off in the plaintiff's skin, injuring the plaintiff. If the plaintiff asserts a


strict liability claim against the defendant on the ground that the tattoo needle that the defendant used was defective, the defendant's most effective argument in defense would be that

(A) the defendant did not sell the needle to the plaintiff.

(B) the defendant was not the manufacturer of the needle and therefore had no con-trol over its quality.

(C) the plaintiff assumed the risk of injury.

(D) a tattoo needle is not an inherently dan-gerous product.

107. A walker enjoyed walking vigorously in the hours before sunrise, and he was doing so when a police officer drove by in a patrol car. When the policeman saw the walker hurrying down the street in the early morning dark-ness, he pulled his car over to the curb and ordered the walker to stop and identify him-self. The walker showed the policeman his license, told him that he lived only a few blocks away, and explained that he was just taking a walk. When the policeman told the walker to get into the back of the patrol car, the walker asked whether he was under arrest. The policeman replied, "No, but if you know what's good for you, you'll get into the car and shut up while I decide what to do with you." The walker got into the car and sat quietly in the backseat with the door open while the policeman called the walker's description in to police headquarters over the radio. About 15 minutes later, satisfied that the walker was not wanted for violating any law, the policeman told him that he could go. If the walker asserts a claim against the policeman for false imprisonment, the court should find for

(A) the policeman, if the rear door of the policeman's patrol car remained open all the time that the walker sat in the car.

(B) the policeman, because the walker did not object to sitting in the patrol car.

(C) the walker, if the language used by the policeman induced the walker to obey the policeman's order.

(D) the walker, only if he sustained damage as a result of his detention by the policeman.

108. Because he was driving in an unreasonable manner, a driver's truck collided with a power pole on Main Street. The power pole fell down as a result of the impact, causing electrical power to fail in the operating room of Merced Hospital on Broad Street, two blocks away. At the time of the power failure, a patient was undergoing facial surgery in the Merced Hospital operating room. The hospi-tal's emergency generator went on automati-cally, supplying enough electrical power to light the operating room dimly. The doctor who was operating on the patient was able to complete the surgery on the patient's face, but the operation left the patient with perma-nent and disfiguring scars. If the power had not failed, the doctor would have been able to prevent the scarring. If the patient asserts a claim for negligence against the driver, which of the following additional facts or infer-ences, if it were the only one true, would provide the driver with his most effective defense?

(A) The reasonable surgeon in the doctor's position would not have proceeded with the operation while the operating room was dimly lit by the hospital's emergency generator.

(B) The reasonable person in the driver's position would not have anticipated that driving a truck on Main Street would affect any person at Merced Hospital.

(C) The doctor was guilty of aggravated negligence in continuing to operate on the patient under the circumstances then existing.

(D) The patient's scarring was caused by the conduct of the doctor.

TORTS QUESTIONS 665

109. The Leopards and the Sharks were major league baseball teams headquartered in the city. The plaintiff and the defendant were sportswriters who wrote for competing news-papers in the city. Because most of the plain-tiffs articles praised the Leopards, and most of the defendant's articles praised the Sharks, a rivalry developed between the plaintiff and the defendant. One of the defendant's recent columns contained the following statement:

The plaintiff's team can't play ball, and the plaintiff can't write his way out of a paper bag. The only thing more boring than reading the plain-tiff s stuff is reading it while watching the Leopards play.

If the plaintiff commences an action for defa-mation against the defendant, which of the following would be the defendant's most effective argument in defense?

(A) The plaintiff is a public figure.

(B) The statements made by the defendant were expressions of opinion.

(C) The defendant's occupation makes him a media defendant.

(D) The defendant's statements were privi-leged by the defense of competition.

110. A pilot was a commercial pilot who operated a package air-delivery service. Having been hired to deliver a parcel to an airport located 300 miles away, he had his plane filled with fuel supplied by an oil company. The fuel that was put into the pilot's fuel tank had been contaminated before leaving the oil company's refinery, but neither the pilot nor the oil company knew about the contamina-tion. After the pilot had flown 100 miles from the airport, the contaminants in the fuel caused his engine to fail. The pilot looked for a place to make an emergency landing and chose the parking lot of an art museum because it was the only level land in the vicinity. The art museum housed a rare and valuable collection of art.

The pilot succeeded in landing in the parking lot without causing any damage. If the art museum asserts a claim against the pilot for trespass to land, which of the following argu-ments would be most effective for the pilot's defense?

(A) The engine failure that resulted from contaminated fuel was unforeseeable.

(B) The pilot did not intend to enter the realty of the art museum.

(C) Landing on the parking lot of the art museum was reasonable considering the risk to the pilot and his airplane.

(D) The accident was caused by a defect in the product furnished by the oil com-pany.

At 9 A.M., a man parked his car on a road in front of the play yard of the elementary school. At the time that he parked the car, the man knew that he was violating a statute that prohibited parking within two blocks of any elementary school. At 10 A.M. on the same day, because she was driving at an unreason-ably fast rate of speed, a woman lost control of her car and struck the man's parked vehicle. The impact caused a passenger in the woman's car to be thrown against the wind-shield, severely cutting her face and rendering her unconscious. If the man's car had not been parked where it was, the woman would have collided with a six-foot concrete wall that surrounded the school play yard.

If the passenger asserts a negligence claim against the man, which of the following addi-tional facts or inferences, if it was the only one true, would be most likely to lead to a judgment for the man?

(A) The statute that prohibited parking within two blocks of any elementary school was designed to protect school-children.

(B) The accident would not have occurred if the woman had not been operating her vehicle in an unreasonable manner.


(C) If the woman's car had hit the concrete wall, the passenger would have sus-tained injuries as serious as those sus-tained in the collision with the man's car.

(D) The woman's unreasonable driving was an intervening cause of harm.

112. At the trial of The Plaintiff v. Able and Baker, the jury found that the plaintiff was damaged to the extent of $100,000. The jury further found that the plaintiff's damage was caused 20 percent by the plaintiff's negli-gence, 40 percent by Able's negligence, and 40 percent by Baker's negligence. The jurisdiction had a statute that read as follows:

In a negligence action, no plaintiff shall be barred from recovery because of that plaintiff's contribu-tory negligence, but such plaintiff's recovery shall be diminished in pro-portion to plaintiff's own fault.

The court held that Able and Baker were jointly and severally liable for the plaintiff's damage and entered judgment for the plaintiff consistent with the jury's verdict.

Able became insolvent following the entry of judgment. How much money is the plaintiff entitled to collect from Baker?

(A) $100,000.

(B) $80,000 ($100,000 less 20 percent).

(C) $40,000 (40 percent of $100,000).

(D) None.

113. While waiting for a bus, a man decided to go into Joe's Bar to use the public phone. One of the man's neighbors was seated at the bar when the man entered. Although the man realized that his neighbor was drunk, the man asked the neighbor for a ride home. The neighbor agreed and left with the man at once. Because he was drunk, the neighbor lost control of his car and collided with a car driven by another driver, injuring the other

driver and the man and damaging the other driver's car.

The other driver asserted a negligence claim against the man for damages resulting from the accident. The court should find for

the other driver, if the man's negligence was a proximate cause of the other driver's injuries.

the other driver, unless the man's con-duct was a superseding cause of the other driver's injuries.

the man, only if the man's conduct was a concurring cause of the other driver's injuries.

the man, because a passenger in an automobile is under no obligation to control the conduct of its driver.

114. The Historic Investor is a monthly publica-tion of interest primarily to persons who deal in the purchase and sale of historic buildings as an investment. It is read by approximately 1,000 subscribers each month. An issue of the Historic Investor contained an article about the recent sale of Montebello, an old house that had once been owned by a United States president. The article stated that Montebello had been purchased by the plaintiff for $950,000. It described the plaintiff as a bank president earning a salary of $100,000 per year and stated that she had purchased Montebello with part of the $1 million fortune that she inherited from her mother.

Writers of the article had obtained informa-tion about the sale of Montebello from public records of the Office of the County Recorder. Information about the plaintiff's employment and salary had been obtained from public records of the state Department of Banks, and information about her inheritance from public records of the state Probate Court. All statements made in the article were accurate.

The plaintiff asserts a claim for invasion of privacy against the Historic Investor on the ground that the article publicly disclosed

TORTS QUESTIONS 667

facts about her salary and inheritance. The court should find for

(A) the plaintiff, if most members of the general public were unfamiliar with records of the state Department of Banks and the state Probate Court.

(B) the plaintiff, because there is no right to publish information regarding the personal wealth of a person who is not a public employee.

(C) the Historic Investor, because liability cannot be imposed for publication of the truth.

(D) the Historic Investor, because the plain-tiff's salary and inheritance were a matter of public record.

115. For many years, powdered cement used by a factory was delivered in 90-pound sacks. Recently, however, factory officials deter-mined that it would be considerably less expensive to purchase unbagged cement. Since then, the factory has maintained a huge bin containing unbagged powdered cement in a yard outside its factory building. As a result of the factory's change to unbagged cement, the amount of cement dust in the air around its factory has increased substantially.

A landowner lived in a cabin in the area. After the factory began using unbagged cement, cement dust from the factory's operation continually settled on the cabin that the landowner occupied. Although the dust did no physical harm to the cabin or to the landowner, the landowner complained to offi-cials of the factory that the dust annoyed her. Because the factory received no other com-plaints from other area residents, however, it continued using unbagged cement.

If the landowner wishes to assert a tort claim against the factory on account of the cement dust that continually settles on the cabin, which of the following would be her most effective theory?

(A) Invasion of privacy.

(B) Public nuisance.

(C) Trespass to land.

(D) Strict liability for engaging in an abnor-mally dangerous activity.

116. An employee was driving a pickup truck owned by the company when he collided with an automobile owned and operated by a driver. A passenger in the driver's car subse-quently asserted a claim against the company, the employee, and the driver for injuries sus-tained in the accident. At trial, the jury fixed the amount of the passenger's damages and found that the employee was 40 percent at fault, the driver was 60 percent at fault, and the passenger was not at fault. It was also found that the employee was acting within the scope of his duties as an employee of the company when the accident occurred. In issu-ing a judgment for the passenger, the court held that the employee and the driver were jointly and severally liable for the passenger's injuries and that the company was vicariously liable for the employee's tort. The jurisdiction had statutes that adopted pure comparative negligence and recognized a right of contribution between joint tortfeasors.

In enforcing the judgment, what portion of her damages is the passenger entitled to col-lect from the employee?

(A) 0%

(B) 40%

(C) 50%

(D) 100%

117. In a negligence action by the plaintiff against Able and Baker, the court found that the plaintiff's injuries were proximately caused by the combined negligence of Able and Baker and that Able and Baker were jointly and severally liable to the plaintiff in the sum of $100,000. The court also found that in producing the plaintiff's injury, Able was 40 percent at fault and Baker was 60 percent at fault. The jurisdiction has a statute recogniz-ing the right of contribution between joint


tortfeasors, and that contribution shall be based on apportionment of fault.

After the entry of judgment, the plaintiff succeeded in collecting $10,000 from Able. Which of the following correctly states the amount that the plaintiff is entitled to collect from Baker?

(A) $50,000 (60 percent of $100,000 minus $10,000 already collected).

(B) $60,000 (60 percent of $100,000).

(C) $90,000 ($100,000 minus $10,000 already collected).

(D) $100,000.

118. A biker was riding her bicycle in a reason-able manner when she was struck by a car negligently driven by a driver. As a result, the biker was thrown to the ground, breaking her left leg. A moment later, while lying in the road, the biker was struck by a car negli-gently driven by a second driver, breaking the biker's right leg.

If the biker asserts a claim against the first driver, will the first driver be held liable for damages resulting from the biker's broken RIGHT leg?

(A) No, because the second driver was required to take the biker as he found her.

(B) No, if the biker's right leg would not have been broken but for the second driver's negligence.

(C) Yes, if it was foreseeable that a person lying in the roadway with a broken leg would be struck by a second car.

(D) Yes, because the biker's right leg would not have been broken but for the first driver's negligence.

119. During the course of an argument about poli-tics, the defendant slapped the plaintiff in the face. Angry, the plaintiff pointed an unloaded pistol at the defendant. The defendant imme-diately drew a knife and stabbed the plaintiff

with it, injuring him severely. The plaintiff subsequently asserted a battery claim against the defendant. The only defense raised by the defendant was self-defense.

In determining the defendant's liability to the plaintiff, the most important issue that must be decided is whether

(A) the use of a knife by the defendant con-stituted deadly force.

(B) the defendant knew or should have known that he could safely and easily retreat without sustaining harm.

(C) the defendant was the initial aggressor.

(D) the plaintiff knew that his pistol was unloaded.

120. As a result of a minor earthquake, the frame-work of a building that the builder was erecting on Third Street collapsed. When the builder began the building, he knew that the steel that he was using for that purpose was of poor quality, but he decided to use it any-way. If the steel had not been of poor quality, the earthquake would not have caused the building to collapse.

A driver was employed by a gas company to operate a gasoline truck. She had parked the truck on Third Street in front of the builder's construction site moments before the earthquake. When the building collapsed, falling debris struck the truck, causing it to rupture and causing its cargo of gasoline to leak. A stream of gasoline that leaked from the truck flowed for three blocks until it reached Sixth Street. There, unaware of the presence of gasoline, a man tossed a lit cigarette into the street. The cigarette caused the gasoline to explode, injuring a woman standing nearby.

If the woman asserts a claim against the builder, alleging that the builder's use of poor quality steel in the construction of a building on Third Street was negligent, the court should find for

TORTS QUESTIONS 669

(A) the builder, if the presence of the gaso-line truck was an intervening cause of the woman's harm.

(B) the builder, because an earthquake is an Act of God.

(C) the woman, because the earthquake was a minor one.

(D) the woman, if the use of poor-quality steel in the construction of a building on Third Street created an apparent danger to persons on Sixth Street.

121. The owner of a supermarket purchased an automatic door-opener from its manufacturer. The device included rubber step-plates that were to be installed on the floor on both sides of the door. When a person stepped on one of the step-plates, the machine was designed to swing the door away from him or her. The manufacturer furnished detailed installation instructions that contained the following warning:

After installing step-plates, test by stepping on one of them. If the door swings toward you instead of away from you, disconnect the automatic door-opener at once and make no further use of it until you have called our hotline for further directions.

The store owner hired a contractor to install the automatic door-opener while the store was closed for the night. The contractor read the instructions furnished by the manufacturer but disregarded the above warning. When he finished installing the device, he did not test it by stepping on one of the step-plates but advised the store's night manager that the job was complete. The following morning when the store opened, a customer entered to purchase a particular brand of soft drink. When he was attempting to leave, he stepped on the step-plate that the contractor had installed. Because of a short circuit in the step-plate, the door swung toward him, strik-ing and injuring his face.

The customer asserted a claim for his injuries against the store owner. Which one of the following additional facts or inferences, if it was the only one true, would be most likely to result in a judgment for the customer?

The customer's injury resulted from a defect in the step-plate.

The contractor was not negligent in his installation of the automatic door-opener.

A reasonable inspection by the store owner would have disclosed that the door opened improperly.

The customer made a purchase from the store owner before being struck by the door.

122. The plaintiff, an adult, took his neighbor's seven-year-old son to see the circus. During the show, many children left their seats to watch the performance from the edge of the area on which it took place. The boy did so with the plaintiff's permission. When the cir-cus's trained lions were performing, one of the animals got away from its enclosure and struck the boy with its paw, injuring him. Horrified, the plaintiff ran from his seat and chased the lion away from the boy. The plaintiff was not touched by the lion but became highly nervous as a result of the inci-dent.

If the plaintiff asserts a claim for battery against the circus, the court should find for

(A) the plaintiff, but only if the jurisdiction applies the doctrine of transferred intent.

(B) the plaintiff, because the plaintiff experi-enced mental suffering as a result of harmful contact inflicted upon the boy.

(C) the circus, because the plaintiff was not touched by the lion.

(D) the circus, unless the circus knew that the lions would attack a member of the audience when the circus exhibited them.


123. When the plaintiff was divorced from her husband, the court awarded custody of their four-year-old son to the plaintiff. The plaintiff frequently permitted the boy to spend week-ends with her ex-husband at the home of the ex-husband's father. One weekend, while the boy was visiting with the ex-husband, a friend of the plaintiff's phoned her. The friend said that she heard that the ex-husband was planning to remove the boy from the state permanently.

Panicked, the plaintiff ran to the home of the ex-husband's father and pounded on the door. When the ex-husband's father came to the door, the plaintiff demanded, in a loud voice, that the ex-husband's father tell her where her ex-husband and her son were. The ex-husband's father knew that the ex-husband had taken the boy to the movies and would soon be returning. Because the plaintiffs manner frightened him, however, the ex-husband's father said that he had no idea where they were or when they were coming back and refused to talk to the plaintiff any further.

As a result, the plaintiff became highly upset. She visited her physician, who prescribed a mild tranquilizer, but she remained nervous until the ex-husband brought the boy to her home that evening.

The plaintiff asserted a claim against the ex-husband's father for false imprisonment. The court should find for

(A) the ex-husband's father, because the plaintiff sustained no physical injury as a result of the incident.

(B) the ex-husband's father, if he did not prevent the plaintiff from leaving his home.

(C) the plaintiff, only if she was legally entitled to custody of the boy.

(D) the plaintiff, because the ex-husband's father prevented her from seeing or communicating with the boy.

124. The defendant was driving down a residential street when he saw a five-year-old boy riding a tricycle in the roadway in front of him. The defendant attempted to stop his car but was unable to do so because he was traveling at an excessive rate of speed. The defendant's car struck and killed the boy, flinging the child and tricycle through the air.

The plaintiff was standing in her living room when she heard the screech of the defen-dant's brakes. Glancing out through her window, she saw the boy's bloody body fly through the air and land on her front lawn. The plaintiff was so shocked by what she saw that she suffered a heart attack and needed to be hospitalized for several weeks. If the plaintiff asserts a claim against the defendant for damages resulting from mental distress that she experienced because of the incident, which one of the following addi-tional facts or inferences, if it was the only one true, would be most likely to result in a judgment for the plaintiff?

(A) The reasonable person would have expected someone to be in the plain-tiff's position and to experience mental suffering as a result of the incident.

(B) The jurisdiction applies the doctrine of transferred intent.

(C) The jurisdiction applies the doctrine of transferred consequences.

(D) The reasonable person would regard the defendant's speed as outrageous.

125. A homeowner hired a painter to paint the outside of the homeowner's house. About two hours after the painter had finished the job and left, the homeowner noticed the painter's ladder lying across the homeowner's front lawn. The homeowner immediately phoned the painter, asking him to remove the ladder. The painter said he would come back for the ladder but did not do so.

Two days later, a government employee was walking across the homeowner's lawn while delivering mail. On several occasions in the past, the homeowner had asked her to use the

TORTS QUESTIONS 671

sidewalk and not to walk on his lawn. The homeowner saw the employee walking toward the painter's ladder on his lawn but did not warn the employee because he believed that she saw it. Although the lawn had recently been mowed and the ladder was in plain view, the employee did not see the ladder and tripped over it, injuring her knee.

The jurisdiction applies the all-or-nothing rule of contributory negligence.

If the employee asserts a negligence claim against the homeowner for damages resulting from her injury, which of the following would be the homeowner's most effective argument in defense?

(A) The homeowner did not know with cer-tainty that the employee would be injured.

(B) The dangerous condition was created by the painter.

(C) The homeowner believed that the employee knew that the ladder was there.

(D) A landowner owes no duty to govern-ment employees entering on official business.

126. Six months after a doctor performed surgery on her, a patient was X-rayed by another doc-tor. The X-ray disclosed a surgical instrument inside the patient's chest. The first doctor was the only person who had ever performed surgery on the patient. The patient subse-quently asserted a medical malpractice claim against the doctor, alleging that the doctor had negligently left the surgical instrument inside her while operating on her.

If an expert testifies that surgeons do not usu-ally leave instruments inside a patient's body unless they are acting unreasonably, may the patient rely on res ipsa loquitur in her claim against the doctor?

No, because the doctrine of res ipsa loquitur is not applicable to a claim for professional malpractice.

No, because a jury of laypersons is not competent to infer that a physician was negligent.

Yes, because a surgeon is under an abso-lute duty not to leave instruments inside a patient's body.

Yes, because the doctor was the only person who had ever performed sur-gery on the patient.

127. Alva and Benny were driving their vehicles in an unreasonable manner when they col-lided. The collision caused Alva's vehicle to strike and injure a pedestrian who was cross-ing the street in the middle of the block. The pedestrian was hospitalized as a result of the accident, but he had hospitalization insurance that paid $10,000 toward his hospital bill.

The pedestrian subsequently asserted a claim against Alva and Benny. At the trial, in response to the judge's instructions, the jury found that the pedestrian sustained damages of $100,000, and that the accident resulted 40 percent from the negligence of Alva, 40 per-cent from the negligence of Benny, and 20 percent from the negligence of the pedestrian. The judge ruled that Alva and Benny were jointly and severally liable to the pedestrian and entered judgment in accordance with the jury's verdict.

Which of the following statements correctly describes the amount that the pedestrian is entitled to collect from Alva in a jurisdiction that has a pure comparative negligence statute?

(A) $100,000 reduced by 20 percent.

(B) $100,000 reduced by $10,000 and fur-ther reduced by 20 percent.

(C) 40 percent of $100,000.

(D) 40 percent of the amount derived by subtracting $10,000 from $100,000.


128. When the plaintiff, a law student, told her cousin that she needed a place to study, her cousin gave her the key to his mountain cabin and said that she could use it. Because the plaintiff had never been there before, her cousin drew a map and wrote instructions on how to find it. The plaintiff followed the map and instructions, but when she arrived, she found five identical cabins in a row and did not know which one was her cousin's. She tried the key that her cousin had given her. When it opened the door of one of the cab-ins, she went inside, believing the cabin to be her cousin's.

Actually, the cabin that the plaintiff entered did not belong to her cousin, but to his neighbor, the defendant. The cousin knew that his key fit the doors of all five cabins, but he had forgotten to mention it to the plaintiff. While the plaintiff was inside the cabin, she attempted to turn on the gas stove. Because of a defect in the stove, it exploded, injuring the plaintiff.

If the plaintiff asserts a claim against the defendant for her injuries, the court should find for

(A) the plaintiff, because the stove was defective.

(B) the plaintiff, if the defendant should have anticipated that a person would enter his cabin by mistake.

(C) the defendant, only if the plaintiff was an unknown trespasser at the time of the explosion.

(D) the defendant, unless the defendant knew or should have known that some-one would be injured by the stove.

129. One evening in Adam's tavern, a 17-year-old girl drank alcoholic beverages that Adam sold her. The girl then left and went to Barney's tavern, where she drank alcoholic beverages that Barney sold her. When the girl left Barney's tavern, she attempted to ride home on her motorcycle. Because the girl was intoxicated, she struck and injured a pedes-

trian. The pedestrian subsequently asserted claims against Adam and Barney under a state law that provides as follows: "If a minor under the age of 20 years injures another while intoxicated, any person who sold said minor the alcohol that resulted in said minor's intoxication shall be liable to the injured person."

Adam did not sell the girl enough alcohol to make the girl intoxicated, and the alcohol that Barney sold the girl would have made the girl intoxicated even if Adam had sold the girl no alcohol at all. In determining the pedestrian's claim against Barney, the court should find that

(A) Barney's conduct was not the cause of the girl's intoxication because Adam's conduct was a substantial factor in making the girl intoxicated.

(B) Barney is liable under the statute even if Barney's conduct did not cause the girl to become intoxicated.

(C) Barney's conduct was a cause of the pedestrian's injury because the girl would not have become intoxicated if Barney did not sell the girl alcoholic beverages.

(D) Barney's conduct was a cause of the girl's intoxication but was not a cause of the pedestrian's injury because the girl's driving superseded it.

130. A landowner hired a professional architect to draw plans for a two-story residence to be constructed on the landowner's realty. The plans that the architect prepared called for a staircase to be supported by a single concrete pillar. The landowner then hired a licensed building contractor to construct a house in accordance with the architect's design. Upon examining the plans, the contractor told the landowner that she did not think that one pillar would provide sufficient support for the staircase. When the landowner discussed the contractor's objection with the architect, however, the architect insisted that one pillar would be sufficient. The landowner told this

TORTS QUESTIONS 673

to the contractor and convinced the contractor to rely on the architect's plan.

The contractor completed the building as agreed and turned it over to the landowner on April 1. Two weeks later, the landowner hired a mover to move a piano onto the sec-ond floor of the house. While the mover was carrying the piano up the staircase, the stair-case collapsed, causing the mover to sustain injury. If the staircase had been supported by two columns, it would not have collapsed.

If the mover asserts a negligence claim against the contractor, the court should declare that

(A) the contractor assumed the risk because she supported the stairway with only one pillar even though she was aware of the danger of doing so.

(B) the contractor is not liable because she had turned the building over to the landowner prior to the accident.

(C) the contractor is not liable if it was rea-sonable for her to rely on the archi-tect's instructions in constructing the stairway.

(D) the contractor absolved herself of the risk by objecting to supporting the stairway with only one pillar.

131. A man was obviously intoxicated when he entered a bartender's tavern one night and ordered a drink of Old Wheatstraw alcoholic liquor. A statute in the jurisdiction prohibits serving alcoholic liquor to any intoxicated person. The bartender knew that the man was intoxicated, but because the man was a good customer, the bartender opened a new bottle of Old Wheatstraw and poured him some of it. After drinking the liquor, the man left the tavern and began driving home.

The liquor that the bartender served the man was manufactured by Wheatstraw. Before the liquor left Wheatstraw's factory, an angry employee added a poison to it that could not have been discovered by reasonable inspec-

tion. While the man was driving in a reason-able manner, the poison caused him to die. As a result, the man's car struck a pedestrian, injuring her.

If the pedestrian asserts a claim against Wheatstraw, the court should find for

Wheatstraw, because the employee deliberately poisoned the liquor before it left the factory.

Wheatstraw, because the pedestrian did not purchase or consume Wheatstraw's product.

the pedestrian, because the liquor con-tained poison when it left Wheat-straw's factory.

Wheatstraw, because the poison could not have been detected by reasonable inspection.

132. Pursuant to a contract with the federal gov-ernment, a rocket company manufactured and launched rockets used for placing communi-cations satellites into space. Shortly after the rocket company launched one of its rockets, the rocket exploded in the air. It then crashed into a storage building owned by a medical company that contained antibiotics with a value of $180 million, totally destroying the building and its contents. No one could deter-mine the cause of the explosion. Although the rocket company used reasonable care in all aspects of the manufacturing and launching process, a few of the rocket company's rockets had exploded in the past shortly after launch. Each time this happened, the rocket involved was completely destroyed while in the air and caused no damage on the ground.

If the medical company asserts a claim against the rocket company for the loss of its building and contents, the court should find for

(A) the medical company, if the construction and launching of rockets is an abnor-mally dangerous activity.


(B) the medical company, under the doctrine of res ipsa loquitur.

(C) the rocket company, if the reasonable person would not expect antibiotics worth $180 million to be stored in one building.

(D) the rocket company, because none of the rocket company's rockets caused any damage on the ground in the past.

133. A company manufactures belt trucks, which are small, open-motor vehicles equipped with conveyor belts and used by airlines for han-dling baggage. The company's officials are aware that persons who maintain belt trucks frequently set the belt idle above 15. They are also aware that this can cause the belt truck to lurch forward when the belt is acti-vated, unless it is equipped with an accelera-tion suppressor. For this reason, the company's design calls for every belt truck to be equipped with an acceleration suppressor. However, due to an error at the factory, the manufacturer sold an airline a belt truck that did not have an acceleration suppressor.

Two months later, the airline went out of business and sold the belt truck to a second airline. An independent contractor hired by the second airline to maintain the second air-line's equipment set the belt idle above 15. Subsequently, an employee of the second airline attempted to activate the belt while standing beside the belt truck. She was injured when the belt truck lurched forward and struck her.

The employee asserts a claim against the company on the ground that the absence of an acceleration suppressor made the belt truck defective. The court should find for

(A) the company, if the first airline was neg-ligent in failing to discover that the belt truck was not equipped with an acceleration suppressor.

(B) the company, because if the contractor had acted reasonably in setting the belt

idle, the employee would not have been injured.

(C) the employee, because persons who maintain belt trucks frequently set the belt idle above 15.

(D) the employee, because the negligence of the contractor is imputed to the com-pany.

134. A company operated a manufacturing plant just outside the town, making an insecticide that was very important to the state's orange crop. Breezes frequently carried fumes from the company's plant into the town. Although the fumes did not violate state air pollution laws, they caused many buildings in the town to need frequent repainting and led many homeowners to complain about it to the company. The company did nothing about it, however, because the cost of eliminating the fumes was extremely high.

A homeowner, who owned a house in the town in which he resided with his son, had to repaint his house several times because of the fumes.

The homeowner asserted a private nuisance claim against the company for the damage to his paint, asserting that the company was negligent in failing to eliminate the fumes. Which of the following would be the company's most effective argument in defense against the homeowner's claim?

The operation of the company's plant did not result in a physical invasion of the homeowner's realty.

The fumes affected others in substan-tially the same way as they affected the homeowner.

The company officials did not know that the fumes would affect the paint of the homeowner's house.

The cost of eliminating the fumes would have driven the company out of busi-ness.

TORTS QUESTIONS 675

135. A company was the manufacturer of a prod-uct known as Hairtastic, which was sold over the counter for the treatment of dandruff and dry scalp conditions. The plaintiff purchased a bottle of Hairtastic at a local drugstore. A statement on the label read, "This product will not harm normal scalp or hair." The plaintiff used the product as directed. Because of a scalp condition making him allergic to one of the ingredients, the product irritated his scalp, causing him much pain and discomfort.

In an action by the plaintiff against the com-pany on the theory of strict liability in tort, which of the following additional facts or inferences, if it was the only one true, would be most helpful to the plaintiff's case?

(A) Injuries of the kind sustained by the plaintiff do not ordinarily result from the use of a product like Hairtastic unless the manufacturer was negligent.

(B) Prior to the plaintiff's purchase of the product, an article regarding the allergy from which he suffered had appeared in a widely read journal of the hair-care industry.

(C) The ordinary consumer would not have expected the use of Hairtastic to result in an irritation of the scalp of someone with the plaintiff's allergy.

(D) At the time it manufactured the product purchased by the plaintiff, the com-pany was aware that its ingredients could irritate the scalp of persons with allergies like the plaintiff's.

136. A man was already intoxicated when he entered the defendant's tavern. At first, the defendant refused to serve him any more alcohol. The man insisted, however, and at his insistence, the defendant served him three more drinks. When the man left the bar, he was unable to start his car. He asked a pro-fessor, who was driving by, to assist him. The professor, who realized that the man was drunk, determined that the man's battery was weak and started the man's car by connecting

a cable to her own battery. Later, while driving, the man struck a pedestrian who was walking across the street.

The pedestrian asserted a claim for his per-sonal injuries against the defendant. Which of the following would be the defendant's most effective argument in defense?

(A) The man was already intoxicated when he came into the bar.

(B) The accident would not have occurred if the professor did not help the man get his car started.

(C) The reasonable person would not have expected the man to drive when he left the bar.

(D) Persons outside the defendant's tavern were not in privity with the defendant.

137. A fanner owned 500 acres of land on which she grew wheat. By a valid written contract, she agreed to deliver all her wheat to a com-pany to be used by that company in the pro-duction of bread for sale to the general public. While harvesting the crop, she real-ized that a blade on her harvesting machine was broken and that fine slivers of metal were becoming mixed with the wheat. She said nothing about this when she delivered the wheat to the company, since she knew that the company ordinarily cleaned its wheat before using it.

The bread company used the wheat that it purchased from the farmer to manufacture a loaf of bread that it sold to a sandwich shop. The sandwich shop owner used the bread to make a sandwich. Because the bread con-tained slivers of the blade from the farmer's harvesting machine, the customer who bought the sandwich lacerated the lining of his throat when he tried to eat it.

In an action by the customer against the bread company, can the customer success-fully rely on the doctrine of res ipsa loquitur?


(A) Yes, if the exercise of reasonable care in the baking process would ordinarily have eliminated all metal slivers from the wheat.

(B) Yes, if the presence of metal slivers made the bread defective.

(C) No, if the presence of the metal slivers

in the wheat resulted from the farmer's failure to use reasonable care.

(D) No, if it was unforeseeable that a broken blade on the farmer's harvesting machine would result in the presence of metal slivers in the wheat.

138. A 13-year-old girl was a member of Super Scouts, a national young people's organiza-tion. As part of a Super Scout project, she planned to spend an entire weekend camping alone in the woods. A kidnapper, who knew about the project, phoned the girl's mother the day after the girl left home. The kidnapper said, "We have your daughter. We've already beaten her up once, just to hear her scream. Next time, we might kill her." The kidnapper instructed the girl's mother to deliver a cash ransom to a specified location within one hour. Since there was no way to locate the girl's campsite in the woods, the girl's mother could not find out whether the kidnapper was telling the truth. Horrified that her daughter might be beaten and injured or killed, she delivered the ransom as instructed. She remained in a hysterical state until the girl returned from her camping trip and the girl's mother realized that the ransom demand had been a hoax. The girl's mother, who already suffered from a heart ailment, had a heart attack the day after the girl's return.

If the girl's mother asserts a claim against the kidnapper for damages resulting from her heart attack on a theory of intentional inflic-tion of emotional distress, the court should find for

(A) the kidnapper, because the heart attack occurred the day after the girl's return.

the kidnapper, if the mother's preexist-ing condition made her especially sus-ceptible to heart attack.

the girl's mother, if the heart attack was caused by the kidnapper's outrageous conduct.

the girl's mother, because the kidnapper

should have foreseen that his conduct would result in harm.

139. While the plaintiff was visiting her daughter, the two of them decided to go swimming at a nearby public pool. Since she had not brought a bathing suit along on her visit, the plaintiff went to a department store to pur-chase one. While looking at the suits on the bargain counter, she found one made by a bathing suit company. The package that con-tained it bore a label that read, "Disposable Bathing Suit. This garment is made com-pletely from recycled paper. Although it is strong enough to be worn several times and is even washable, it's inexpensive enough to be thrown away after one use. Buy several, and take them with you on trips to the beach." The plaintiff bought the suit and then went to the beach. The first time she was hit by a wave, however, the suit completely dis-integrated.

Which of the following additional facts or inferences, if it was the only one true, would be most helpful to the department store's defense in an action by the plaintiff against the department store?

(A) The department store had sold the bath-ing suit company's products for several years and had never heard of any prob-lem like the one experienced by the plaintiff.

(B) A sign on the bargain counter where the plaintiff found the suit said, "Sale Mer-chandise. All sales final."

(C) The plaintiff knew that paper bathing suits like the one she had purchased sometimes dissolved when they became wet.


(C) it was reasonable for the company to market the tablets.

(D) the presence of the toxic material was a defect.

143. A driver was looking for an address as he drove down the street and was not watching the road in front of him. As a result, he did not see a pedestrian crossing the street in front of him and struck her with his car, knocking her down. The driver immediately got out of her car to help the pedestrian. When he saw that she was unconscious, he became afraid to move her and left her in the roadway while he ran to a nearby phone. While the driver was gone, a taxi driver drove down the same street. Because he was intoxicated by cocaine, the taxi driver did not see the pedestrian in the roadway, and drove over her, fracturing her leg.

In an action by the pedestrian against the driver for damages resulting from her frac-tured leg, a court is most likely to find for

(A) the pedestrian, if the driver's negligence was a factual and legal cause of the pedestrian's fractured leg.

(B) the pedestrian, since the negligence of the taxi driver is imputed to the driver.

(C) the driver, since his conduct was a legal cause but not a factual cause of the pedestrian's fractured leg.

(D) the driver, if the pedestrian would not have been injured but for the taxi driver striking her.

144. The employee was employed by the employer as chief field mechanic. When he received his salary, the employee noticed that he had not been paid for the overtime that he had worked the previous month. When he complained to the employer about it, the employer said that all company employees were expected to put in extra time when nec-essary and that he had no intention of com-pensating the employee for the excess hours. The employee resigned immediately and advised the employer that he would hold the

tools that the employer had issued to him until he received payment.

The employee applied for a job with another company, and that company wrote to the employee's former employer asking for an evaluation of the employee's honesty and ability. The employer wrote a letter to the other company that stated, "When the employee left my company, a valuable set of tools left with him. This disappearance has never been properly explained or straightened out." As a result, the other company did not hire the employee. If the employee asserts a claim against his old employer for defama-tion, the employee should

(A) lose, if the employee did not return the tools that he took when he left the employer's employ.

(B) lose, because the employer's statement was made in response to a specific request by the employee's prospective employer.

(C) win, because the employer's statement could not have benefitted the employ-er's business interests.

(D) win, if the employer's statement accused the employee of stealing tools.

145. A pilot was injured when the helicopter that he was flying ran out of fuel and fell from the air, crashing into the roof of a homeown-er's house. The pilot purchased the helicopter from the helicopter maker two months before the accident occurred. The helicopter came equipped with a fuel gauge that was manu-factured by a gauge maker. The day after the pilot purchased the helicopter, he noticed that the fuel gauge gave incorrect readings. He complained to an officer of the helicopter maker, who told him to have it fixed and to send the helicopter maker the bill. A week before the accident, the pilot hired an inde-pendent airplane mechanic to repair the fuel gauge. The mechanic worked on the gauge but failed to repair it properly. The day before the accident, the pilot's partner flew the helicopter, using most of the fuel in the

TORTS QUESTIONS 677

(D) The department store could not implead the bathing suit company into the action because the company had gone out of business.

140. A state statute provides that no person shall transport passengers for hire in an airplane unless that person shall be licensed as a com-mercial airplane pilot. A pilot owned a small private airplane but did not have a commer-cial pilot's license. A businessman, who had a business engagement in the City of Terra, offered the pilot $200 to fly him there in the pilot's plane. The pilot agreed, after inform-ing the businessman that he did not have a commercial pilot's license as required by law. While they were flying over the City of Firma, the pilot realized that he had miscal-culated the amount of fuel that he needed for the trip. As a result, he was forced to land at the Firma Airport. After landing and while waiting to be refueled, the pilot's plane was struck by a plane that was being negligently operated by another pilot. The first pilot and the businessman were both injured in the collision. The jurisdiction applies the all-or-nothing rule of contributory negligence.

The first pilot asserted a claim against the second pilot for damages resulting from per-sonal injuries that he received in the colli-sion. A court is most likely to find for

(A) the first pilot, because the accident resulted from the negligence of the second pilot in the operation of his air-plane.

(B) the second pilot, because the first pilot's transportation of a passenger for hire in violation of the statute was negligence per se.

(C) the second pilot, because the first pilot's original flight plan did not include a stop at Firma Airport.

(D) the second pilot, under the doctrine of necessity.

141. The company manufactured a device called the Yawp for training dogs. The Yawp con-

sisted of a leather strap fastened to a collar made of metal links. The links were con-nected to each other in such a way that a pull on the leather strap would cause the collar to tighten painfully around the neck of the dog wearing it. In this way, the dog being trained could be disciplined immediately upon performing improperly. A professional dog trainer was working with a dog known as Spot in her unfenced front yard and was using a brand new Yawp. A man was walking past the yard when Spot began to snarl and lunge at him. When the trainer yanked on the leather strap of the Yawp, it suddenly broke, freeing Spot. The dog sprang forward, biting the walker.

If the walker asserts a claim against the dog trainer, the walker's most effective argument in support of his claim would be that

(A) the dog trainer is strictly liable for dam-age resulting from her use of a defec-tive product.

(B) it was unreasonable for the dog trainer to work the dog in her front yard.

(C) the dog trainer's conduct was a concur-ring cause of harm.

(D) the dog trainer was a professional dog trainer.

142. Because the plaintiff had a headache, he took two headache tablets from a bottle that had been purchased by his wife at the grocery store. The tablets had been manufactured by the company, which sold them to the grocery store in sealed bottles for resale. Because of a toxic ingredient that the tablets contained, the plaintiff became ill as a result of taking them.

If the plaintiff asserts a claim against the company based on a theory of strict liability in tort, the ruling should turn on the question of whether

(A) the company knew that the tablets con-tained a toxic ingredient.

(B) headache tablets that contain a toxic ingredient are inherently dangerous.

TORTS QUESTIONS 679

tank. Although the pilot's partner noticed that the fuel gauge continued to indicate that the tank was full, he neither mentioned it to the pilot nor replaced the fuel in the tank. On the day of the accident, the fuel gauge indicated that the tank was full, although it was actu-ally almost empty.

If the homeowner institutes an action for damage to his house against the helicopter maker on a theory of strict liability in tort, the court should find for

(A) the homeowner, since the doctrine of res ipsa loquitur applies to aircraft acci-dents.

(B) the homeowner, if the accident proxi-mately resulted from a defect in the fuel gauge that existed when the pilot purchased the helicopter.

(C) the helicopter maker, since the home-owner was not a user of the helicopter.

(D) the helicopter maker, if the accident proximately resulted from the conduct of either the mechanic or the pilot's partner.

146. The seller knew that the wowee of his car's engine was cracked. Because he wanted to sell the car, he filled the crack with putty and painted it so that the crack would not show. Then he brought the car to the buyer, a used car dealer, and offered to sell it for $1,000 cash. The buyer placed the car on a lift so that he could inspect it from underneath. He noticed the filled crack but thought that he would be able to resell the car in spite of it. The buyer offered $500, which the seller accepted. The next day, the buyer was show-ing the car to a customer when the crack in the wowee caused the engine to explode, necessitating $500 in repairs and injuring the customer.

If the customer asserts a claim against the seller for injuries that he sustained when the engine exploded, which of the following would be the customer's most effective theory?

(A) Battery, because the seller knew that the wowee was cracked.

(B) Intentional misrepresentation, because the seller knew that the wowee was cracked.

(C) Negligent misrepresentation, because the seller had a duty to disclose that the wowee was cracked.

(D) Negligence, because the seller should have anticipated that a customer of the buyer would be injured as a result of the cracked wowee.

147. Plymouth seeds are a common ingredient in bird food and are sometimes used in salads. A breeder was a breeder of exotic birds. Since he had studied bird nutrition, he pre-ferred to mix feed for his birds according to his own formula instead of using commer-cially available mixes. For this purpose, he purchased a sealed 50-pound package labeled "Plymouth Seeds" from the dealer, who was in the business of selling supplies for bird and livestock breeders. The dealer had bought the sealed package from a wholesaler of seed and grain. Because of negligence at the wholesaler's plant, the seeds in the package were poisonous. The breeder ate some of the Plymouth seeds while he was mixing the bird food and became ill several hours later as a result.

If the breeder institutes a personal injury action against the dealer for damages result-ing from his illness, the breeder's most effec-tive theory of recovery would be

(A) negligence, since the unreasonable con-duct of the wholesaler is imputed to the dealer.

(B) negligence, if the contents of a sack of Plymouth seeds would not ordinarily be poisonous unless they were defec-tive when sold.

(C) breach of express warranty, since the label "Plymouth Seeds" implies that the ingredients are fit for human con-sumption.


(D) strict liability in tort, if the poisonous nature of the seeds was a defect.

148. A natural gas factory was located on the edge of the city. When the wind blew from the east, foul-smelling waste gases from the fac-tory's chimneys were blown over the city, causing most of the residents to experience a burning of the eyes and throat. On several occasions, a city resident attempted to per-suade the city attorney to seek an injunction against the factory. The city attorney refused, however, because the city council was afraid that doing so would drive the factory from the area. If the resident seeks an injunction by asserting a claim against the factory on a theory of public nuisance, which of the fol-lowing would be the factory's most effective argument in defense?

(A) The city attorney's decision is binding.

(B) The resident has not sustained harm dif-ferent from that of the general public.

(C) A private citizen may not seek an injunction against environmental pol-luters.

(D) A private citizen may not sue on a theory of public nuisance.

149. A trucker was eating cherry pie in a restau-rant when a cherry pit contained in the pie stuck in his throat. Unable to breathe, the trucker began choking. A doctor who was eating in the restaurant ran to the trucker's aid and performed an operation known as an emergency tracheotomy. She did this by cut-ting the skin of the trucker's throat with a pocket knife and creating an opening in his windpipe through which the trucker was able to breathe. Then, at the doctor's direction, the trucker walked across the street to a hospital so that the opening that the doctor created could be cleaned and bandaged. Because hos-pital employees negligently failed to enter the trucker's name in the emergency room register, he sat in the emergency room for six hours without further attention. At that time, an earthquake caused a portion of the hospi-

tal's structure to fall, striking the trucker in the head and fracturing his skull.

Assume that the doctor's conduct in perform-ing the emergency tracheotomy was unrea-sonable, and if the doctor had acted reasonably, the trucker would have coughed up the pit without any injury. In an action by the trucker against the doctor for damages resulting from his fractured skull, will the trucker win?

(A) Yes, since he would not have been in the hospital if the doctor had not per-formed the tracheotomy.

(B) Yes, if it was foreseeable that the trucker would be required to wait six hours in the hospital's emergency room.

(C) No, since he would not have been injured were it not for the cherry pit contained in the pie.

(D) No, if the earthquake was a superseding cause of the trucker's injury.

150. Automobiles driven by Able and Baker collided in an intersection. Able and Baker asserted negligence claims against each other for damage to their vehicles. In addition, a passenger in Able's car at the time of the accident asserted a negligence claim against both of them for her personal injuries. The claims were all consolidated and tried together. In answer to specific questions posed by the court, the jury found that the accident was 60 percent the fault of Able and 40 percent the fault of Baker. In addition, the jury found that damage to Able's car amounted to $1,000, that damage to Baker's car amounted to $10,000, and that damage to the passenger amounted to $100,000. The court ruled that Able and Baker were jointly and severally liable for the passenger's inju-ries.

The jurisdiction had a statute that provided that "In any negligence action, a plaintiff's recovery shall not be barred by that plain-tiff's fault, but the recovery of said plaintiff

TORTS QUESTIONS 681

shall be diminished in proportion to such plaintiff's fault, unless that plaintiff's fault shall be greater than that of the defendant, and in such event the plaintiff's recovery shall be barred." Which of the following cor-rectly states the sum to which Able is entitled?

(A) $600 ($1,000 less 40 percent).

(B) $400 ($1,000 less 60 percent).

(C) $1,000.

(D) 0.

151. The landlord was the owner of a four-story office building. The entire second floor of the building was leased to an attorney, and the other floors were divided into offices and leased to various other tenants. Pursuant to the lease between the landlord and the attor-ney, a building manager employed by the landlord was to be on duty daily between the hours of 8 A.M. and 6 P.M. The building was to be open to the public during those hours. At other times, the attorney was free to enter by using his key. On April 1, the attorney was riding in the building elevator when it suddenly and without warning plunged swiftly downward, shaking the attorney up severely. The attorney immediately notified the landlord, who promised to fix it. The landlord did nothing about it, however. On April 2, a client called to make an appoint-ment to consult with the attorney for legal advice. Because the client was unable to come to the attorney's office during regular business hours, the attorney told the client to come the following morning at 6:30 A.M. On April 3, the attorney met the client at the entrance to the building, let them both in with his key, and led the client to the eleva-tor. While they were riding in the elevator to the attorney's office, the elevator suddenly plunged swiftly downward, stopping short when it reached the bottom of the elevator shaft. The client was severely injured in the fall.

The client asserted a claim against the landlord for damages resulting from his injuries,

alleging that the landlord was negligent in failing to fix the elevator or warn the client about it. Which of the following would be the landlord's most effective argument in defense?

(A) The landlord did not owe the client a duty to repair the elevator since the landlord's promise was not made to the client.

(B) The client was a mere licensee since his presence did not confer a benefit on the landlord.

(C) It was not foreseeable that the attorney would permit the client to use the elevator since the attorney knew it was not working properly.

(D) It was unreasonable for the attorney to permit the client to use the elevator since the client knew that it was not working properly.

152. A company manufactures a product called Killem, consisting of chemical pellets that emit fumes that are poisonous to termites and their eggs. Because Killem fumes are poison-ous to human beings as well, the company sells the product to professional extermina-tors only, requiring that each purchaser show his or her state exterminator's license when making a purchase. A shop owner, a licensed exterminator, bought a large container of Killem from the company for use in his busi-ness. The container bore a label that read: "Killem. For killing termites. Caution: This product is intended for use by professional exterminators only. Unauthorized use by any other persons may be dangerous." The shop owner placed the container on a shelf in his shop, where it was discovered by an indepen-dent contractor who the shop owner periodi-cally hired to clean his shop. Since the cleaner thought there were termites in his house, he opened the container and poured some of the chemical pellets into a plastic bag that he then brought home. The next day, the cleaner's three-year-old daughter found the plastic bag containing the Killem pellets and ate some of them, becoming seriously ill


as a result. A statute in the jurisdiction adopted the all-or-nothing rule of contribu-tory negligence.

In an action by the daughter against the shop owner, which of the following would be the daughter's most effective argument?

(A) The store owner should have foreseen that the Killem would cause injury to someone in the daughter's position if left on an exposed shelf in his shop.

(B) The Killem was defective since its label did not adequately warn of the dangers connected with its use.

(C) Killem is an inherently dangerous prod-uct.

(D) The contractor's theft of the Killem pellets was a concurring cause of his daughter's harm.

153. After living together for several months, a man and his girlfriend began to argue fre-quently. On Monday, after an argument, the man left their apartment in anger, saying that he didn't know when he was coming back. The girlfriend changed the lock on the front door and began advertising for a roommate. The following Saturday, the girlfriend took all the man's possessions, including his tele-vision set, which was valued at $600, to a swap meet in hopes of selling them. At the swap meet, she put up a sign that said, "Moving. Everything Must Be Sold Today."

A neighbor was browsing at the swap meet when she saw the television set at the girl-friend's booth. She asked whether it was in good condition, and when the girlfriend said that it was, she asked the price. The girlfriend said, "$50." The neighbor immediately handed the girlfriend the cash, placed the television in her station wagon, and hurried home.

If the man instituted an action against his former girlfriend for trespass to chattel, which one of the following additional facts or

inferences, if it was the only one true, would be most helpful to the girlfriend's defense?

The man's leaving the apartment consti tuted implied consent to the girl-friend's sale of his possessions.

The girlfriend's interference with the man's right to the television was seri-ous enough to justify a forced sale.

The neighbor committed a conversion by purchasing the television set at the swap meet.

At the time the man's action against her was instituted, the girlfriend could not reacquire possession of the television set from the neighbor.

154. The plaintiff and the defendant lived on the same street and worked in the same office, so they formed a car pool, each driving his own car on alternate days. One day while the defendant was driving, the car in front of him stopped suddenly and without warning. Since the defendant had taken his eyes off the road for a moment to look at the plaintiff, he was unable to stop in time and collided with the rear of the stopped car. The plaintiff was injured as a result of the collision.

There was no automobile guest statute in the jurisdiction. In an action by the plaintiff against the defendant, which of the following would be the defendant's most effective argu-ment in defense?

(A) The plaintiff assumed the risk since he knew that it was possible that the defendant's car would be involved in an accident while traveling to work.

(B) The defendant's conduct was not a cause-in-fact of harm since the acci-dent would not have occurred if the car in front of him had not stopped sud-denly.

(C) The defendant did not owe the plaintiff a duty of reasonable care since the plaintiff was a licensee.

TORTS QUESTIONS 683

(D) It was not negligent for the defendant to take his eyes off the road for a moment.

155. The company is the manufacturer of a device known as the Ripper, which was designed for use by professional rescuers in removing accident victims who have become pinned in automobiles. The Ripper consists of power-scissors which, when connected to a portable power-pack, are strong enough to rapidly cut through the metal of a car body. Because the Ripper is heavy and powerful, improper use of it could result in serious harm to the user, as well as to the person being rescued. For this reason, the company sells it only to fire, police, and other rescue agencies and offers a free training course to members of any such agencies that purchase it.

The fire department purchased a Ripper from the company, and its fire chief attended the company training course on its use. Subse-quently, the fire department was called to the scene of an accident in which a woman was trapped in her car. The fire chief directed a volunteer firefighter to use the Ripper to free the woman from her car, although he knew that the volunteer firefighter had not been trained in its use.

The volunteer firefighter, who had never heard of the Ripper before, used it improp-erly, injuring both himself and the woman.

If the woman instituted an action against the fire chief, the woman's best theory would be

(A) negligence.

(B) battery.

(C) strict products liability.

(D) res ipsa loquitur.

156. As a result of her neighbor's negligence, the plaintiff's shoulder and eye were both injured. The plaintiff went immediately to her eye doctor. The eye doctor treated the injury to the plaintiff's eye but suggested that she see an orthopedist for treatment of her

shoulder. The following day, the plaintiff vis-ited an orthopedist, who treated the plaintiff's shoulder.

Because of negligent treatment by the eye doctor, the plaintiffs nose became infected, and because of negligent treatment by the orthopedist, she lost the use of her elbow.

In an action by the plaintiff against her neighbor, which of the following parts of the plaintiffs body is a court most likely to find were injured as a proximate result of the neighbor's negligence?

(A) Her nose.

(B) Her elbow.

(C) Both her nose and elbow.

(D) Neither her nose nor her elbow.

157. The Men of God is a small religious sect that had its origins in colonial Mexico. Originally, members of the sect believed that theft was holy. During the 19th century, they were prosecuted for engaging in religious rituals that involved robbing strangers. At the start of the 20th century, the leaders of the sect revised its philosophy and prohibited the theft that they had formerly encouraged. Some non-members of the sect continue to associ-ate it with robbing people and continue to call its members "Robbers," a term coined by 19th-century journalists who campaigned against the sect.

A minister ordained in the Church of Men, a religious organization that is not associated in any way with the Men of God, delivered the benediction at the year's first meeting of the Town Council of Dartmouth. The following day, the Dartmouth Globe, a daily newspaper, printed an article about the meeting. The article referred to the minister as "a minister of the Church of Men, better known as the Robbers (Men of God)." The minister insti-tuted an action against the Dartmouth Globe, alleging that the reference to him as a minis-ter of "the Robbers (Men of God)" was defa-matory.


Which of the following is a court most likely to find about the statement that appeared in the Dartmouth Globe?

(A) The statement is not defamatory if the Robbers can be classified as a religion under the First Amendment to the United States Constitution.

(B) The statement is not defamatory if mem-bers of the Men of God do not cur-rently engage in improper activities.

(C) The statement is not defamatory if a substantial group of right-thinking people know that members of the orga-nization known as the Robbers no longer engage in improper activities.

(D) The statement is defamatory if many people continue to believe that mem-bers of the organization known as the Robbers engage in improper activities.

158. A company was in the business of developing and manufacturing machinery used in other industries. Having developed a nerfer machine for shaping and stamping Whatsits, the company manufactured and sold seven of them to Whatsit companies throughout the United States. One of the nerfer machines manufactured by the company was sold to the First Whatsit Company, which used it without problems for three years. At the end of that time, however, First redesigned its Whatsits. Since the nerfer machine that it had purchased from the company was inadequate for the production of First's improved Whatsit, First sold the machine to Second Whatsit Company, a company specializing in selling products which, since they were slightly out of date, could be produced and sold at low prices.

The company learned that the flopsy pins in its nerfer machines tended to wear out after three or four years, making the machines dangerous. It contacted the First Whatsit Company, offering to replace the worn part for $1,000, which was what the repair would cost the company to make. When First advised the company that the machine had

been sold to Second, the company contacted Second and made the same offer. Because Second did not want to spend the money, however, it refused the company's offer. Two months later, a Second employee was injured when the worn part in the nerfer machine caused it to explode.

The employee instituted a negligence action against the company that made the machine. The company's defense was based on the assertion that prior to the accident, the com-pany neither knew nor reasonably could have known that the flopsy pin would wear out. If the jury believes this assertion, the employee will

(A) win, since the company is deemed to be an expert in its field and has a duty to know all relevant facts about the prod-uct that it makes.

(B) win, since it is foreseeable that if the flopsy pin did wear out, someone would be hurt.

(C) win, since a manufacturer is strictly liable for defects in its product, whether or not it could have prevented those defects.

(D) lose.

159. A carpenter who was building a house on his own property had posted a sign that said, "No Trespassing." He was working on the framework of his roof when he found that he had brought the wrong hammer onto the roof with him. Without looking to see if anyone was around, he tossed the hammer to the ground, shouting, "Heads up!"

A truck driver was assigned to deliver lumber on the street where the carpenter was build-ing the house. The carpenter had not ordered lumber, but when the truck driver saw the carpenter working on the roof of an unfin-ished house, he incorrectly assumed that the carpenter was the person to whom he was supposed to deliver the lumber. He parked his truck at the curb and was walking across the carpenter's property toward the unfinished

TORTS QUESTIONS 685

house to talk to the carpenter about the deliv-ery when he was struck in the head by the hammer thrown by the carpenter. The truck driver cried out in pain and then fell to the ground, unconscious and bleeding. The car-penter saw it happen, but he merely shrugged and continued working.

A moment later, a passerby who had seen what happened called an ambulance. When it arrived, the truck driver was still uncon-

scious. The ambulance driver loaded the truck driver into the ambulance and began driving to the hospital. Because of the ambu-lance driver's negligent driving, the ambulance struck a pole. The truck driver was killed in the crash.

The representative of the truck driver's estate instituted an appropriate action against the carpenter, in a jurisdiction that applies the all-or-nothing rule of contributory negligence, alleging that the carpenter's throwing of the hammer without looking was negligence. If it were the only one true, which of the follow-ing additional facts or inferences would be most effective in the carpenter's defense against that allegation?

It was reasonable for the carpenter to believe that no one would be struck by the hammer.

It is customary in the construction industry for people working on a roof to toss unwanted tools and objects to the ground without looking, so long as they shout, "Heads up!"

The truck driver could have avoided being struck by the hammer if he had seen it coming.

The blow of his hammer would not have caused a serious injury to a nor-mal person, but it seriously injured the truck driver because his head was extraordinarily sensitive.

160. A company manufactures several kinds of cooked-apple desserts, which are marketed in

sealed packages labeled "Gobblers." One morning on his way to work, a man pur-chased a package of Gobblers from a grocery store. Later that day, while eating lunch, the man opened the package, removed the lid, and began eating the contents with a spoon. After consuming more than half of the prod-uct, the man noticed mold mixed with the cooked apple.

If the man asserts a claim for negligence against the grocery store, the court should find for

(A) the man, because any negligence by the manufacturer of a product is imputed to a retailer selling that product.

(B) the man, if the product was defective when the man purchased it from the grocery store.

(C) the grocery store, unless the grocery store failed to act reasonably in selling the product to the man.

(D) the grocery store, because a retailer is under no duty of reasonable care when selling products packaged in sealed containers.

161. The driver was driving her car north on Pogue Boulevard when the car in front of her stopped suddenly to avoid striking a cat that had run into the roadway. Since there were no cars coming toward her, the driver swerved over the centerline and into the southbound lane. When she did so, she struck and injured a nine-year-old boy who was walking a bicycle south in the southbound lane. Because the sun was in her eyes, the driver did not see the boy until her car struck him.

Half an hour before the accident, the boy's mother told the boy that she did not want him riding his bicycle on Pogue Boulevard because it was a heavily travelled roadway with no sidewalks. She gave him permission, however, to walk his bicycle carefully along the road shoulder.


As a result of the accident, the boy sustained brain damage that will make it impossible for him to support, feed, or care for himself for the rest of his life. The jurisdiction applies the all-or-nothing rule of contributory negligence.

Assume the driver was acting unreasonably when her car struck the boy. If the boy asserts a negligence claim against the driver for his injuries, the court should find for

(A) the boy, unless the accident resulted from his own unreasonable conduct.

(B) the boy, because a nine-year-old is pre-sumed incapable of contributory negli-gence.

(C) the boy, under the doctrine of res ipsa loquitur.

(D) the driver, if it was unreasonable for the boy's mother to give her son permis-sion to walk his bicycle along the roadway.

162. One night, police officers received a message that a burglary was in progress at a grocery store. Rushing to the location, they discov-ered that the back door of the store was open. Entering cautiously, they saw two burglars hiding in the storage room. In the ensuing attempt to make an arrest in the dark, the officers knocked over several stacks of mer-chandise, including cases of bottled soda-pop manufactured by the company. This caused minute cracks in all the bottles. The following day, store employees cleaned up the mess, restacking the cases of soda-pop. Approximately one week later, six of the cases were placed on display in the store. A woman purchased one of the bottles from these six cases but did not notice the minute crack in it.

That evening, the woman was placing the bottle on the dinner table when the bottle exploded because of the crack in it, sending fragments of glass flying in all directions. Both the woman and her daughter were cut by the flying glass.

In an action by the woman against the gro-cery store, a court is most likely to find for

(A) the woman, because she could not have done anything to protect herself against the kind of injury that occurred.

(B) the woman, if the grocery store's con-duct in restacking and selling the bottles was unreasonable under the cir-cumstances.

(C) the grocery store, if the conduct of the police officers is found to be a proxi-mate cause of the injury sustained by the woman.

(D) the grocery store, because the woman and the grocery store were not in priv-ity.

163. One day, while a well-known collector was visiting the dealer's art gallery, the dealer showed him a new painting called The Chocolate Labrador that she had received that day.

"The artist didn't sign it," the dealer said. "But I'm sure it was painted by Monet. That would make it worth at least $250,000."

The collector answered, "It's by Monet, all right. It's worth every cent you're asking. But I already have several paintings by Monet in my collection, and I don't need another."

The buyer, who was browsing in the dealer's gallery, overheard the conversation between the collector and the dealer. The buyer knew very little about art, but he had just inherited a large sum of money. Because he knew that the collector and the dealer were art experts, he believed what he heard them saying. After the collector left the gallery, the buyer asked the dealer if she would accept $200,000 for The Chocolate Labrador. The dealer said that she would not take anything less than $250,000. After negotiation, the buyer purchased it for $225,000. The buyer subsequently learned that The Chocolate Labrador had not been painted by Monet and was worth only $600.

TORTS QUESTIONS 687

If the buyer is successful in a tort action for misrepresentation, the court is likely to award him a judgment for

(A) $250,000 (the value that the dealer stated).

(B) $250,000 (the value that the dealer stated), on condition that the buyer return The Chocolate Labrador to the dealer.

(C) $225,000 (the price that the buyer paid to the dealer).

(D) $224,400 (the price that the buyer paid to the dealer, less the value of The Chocolate Labrador).

164. A husband asserted a claim against a railroad company employee, alleging that statements made by the employee were misrepresenta-tions. Attorneys for both parties agreed to the following facts:

The husband's wife died when she jumped in front of a train owned by the railroad. Two weeks later, the railroad employee contacted the husband. The employee said that although the railroad was not legally responsible for the wife' s death, the railroad was willing to pay $1,000 in full settlement of all claims arising from the wife's death. When the husband said he wanted to speak with an attorney, the employee told him that if an attorney got involved, the railroad would not pay anything because the husband "had no legal claim." The husband doubted that the employee was telling the truth, so he consulted with an attorney. The attorney didn't think the husband had a claim and declined representation. Consequently, the husband accepted the $1,000 and executed a general release. The husband then retained another attorney and instituted a wrongful death action against the employee.

Which of the following would be the employee's LEAST effective argument in defense against the husband's claim?

(A) Liability should not be imposed on the employee because he was acting within

the scope of his employment when he made the statements to the husband.

(B) Statements regarding the law are state-ments of opinion because all persons are presumed to know the law.

(C) The husband did not rely on the state-ments made by the employee because he consulted with an attorney before accepting the employee's offer.

(D) The husband was not justified in relying on the statements made by the employee because the husband knew that the employee represented the rail-road.

165. The plaintiff purchased a bottle of dishwash-ing detergent made by the defendant from a self-service supermarket. The plaintiff selected the defendant's product from the store shelves, carried it to a checkout counter, and paid the cashier. The plaintiff then placed the bottle in a bag furnished by the supermarket and carried it home. After using the product for washing dishes, the plaintiff experienced a serious rash on his hands and wrists as the result of an allergic reaction to a chemical in the product.

If the plaintiff asserts a claim against the defendant on the ground that the product was not merchantable, which of the following additional facts or inferences, if it were the only one true, would provide the defendant with its most effective defense?

(A) The plaintiff's allergic reaction was the only such reaction that ever occurred.

(B) The supermarket purchased the product from an independent wholesaler that purchased it from the defendant.

(C) Before marketing the product, the defen-dant made a reasonable effort to deter-mine whether the product would be harmful to normal skin.


(D) Prior to manufacturing and marketing the product, the defendant received approval for its sale from the federal Food and Drug Administration.

166. A pilot was a commercial pilot who operated a package air-delivery service. Having been hired to deliver a parcel to an airport located 300 miles away, he had his plane filled with fuel supplied by an oil company. The fuel that was put into the pilot's fuel tank had been contaminated before leaving the oil company's refinery, but neither the pilot nor the oil company knew about the contamina- tion. After the pilot had flown 100 miles from the airport, the contaminants in the fuel caused his engine to fail. The pilot looked for a place to make an emergency landing and chose the parking lot of a whaling museum because it was the only level land in the vicinity. The whaling museum housed a rare and valuable collection of whaling parapher-nalia.

The building of the museum was damaged by the pilot's landing. If the museum asserts a claim against the oil company on the theory of strict liability in tort, the court should find for

(A) the museum, if the contaminants in the fuel supplied to the pilot made the fuel defective.

(B) the museum, unless the oil company acted reasonably.

(C) the oil company, only if the contamina-tion of fuel before it left the oil com-pany refinery was unforeseeable.

(D) the oil company, because it had no busi-ness relationship with the museum.

167. At 9 A.M., a man parked his car on George Road in front of the play yard of George Elementary School. At the time he parked the car, the man knew that he was violating a statute that prohibited parking within two blocks of any elementary school. At 10 A.M. on the same day, because she was driving at an unreasonably fast rate of speed, a woman

lost control of her car and struck the man's parked vehicle. The impact caused a passen-ger in the woman's car to be thrown against the windshield, severely cutting her face and rendering her unconscious. If the man's car had not been parked where it was, the woman would have collided with a six-foot concrete wall that surrounded the school play yard.

If the passenger asserts a negligence claim against the woman, the court should find for

(A) the woman, unless it was unforeseeable that a car would be illegally parked in front of an elementary school play yard.

(B) the woman, if the man's conduct in parking the car can be regarded as gross and willful misconduct.

(C) the passenger, if it was likely that a col-lision with a stationary object would result in injury to a passenger in the woman's car.

(D) the passenger, unless there were other causes of harm.

168. At the trial of The Plaintiff v. Allred and Bailey, the jury found that the plaintiff was damaged to the extent of $100,000. The jury further found that the plaintiff's damage was caused 20 percent by the plaintiff's negli-gence, 40 percent by Alfred's negligence, and 40 percent by Bailey's negligence. The jurisdiction had a statute that read as follows:

In a negligence action, no plaintiff shall be barred from recovery because of that plaintiff's contribu-tory negligence, but such plaintiff's recovery shall be diminished in proportion to plaintiff's own fault.

The court held that Allred and Bailey were jointly and severally liable for the plaintiff's damage and entered judgment for the plaintiff consistent with the jury's verdict.

TORTS QUESTIONS 689

Prior to the entry of judgment, the plaintiff collected $10,000 from an insurance com-pany under a policy in which it agreed to pay any medical bills that the plaintiff might incur as the result of an automobile accident. Which of the following correctly reflects the sum that the plaintiff is entitled to collect from Allred and Bailey?

(A) $90,000, because the plaintiff's damage of $100,000 should be diminished by the sum the plaintiff received from the insurance company.

(B) $80,000, because the plaintiff's damage of $100,000 should be diminished by a sum proportional to the plaintiffs own fault, without regard to sums that the plaintiff has received under the insur-ance policy.

(C) $70,000, because the plaintiff's damage of $100,000 should be diminished by a sum proportional to the plaintiff's own fault and further diminished by the sum that the plaintiff received under the insurance policy.

(D) $60,000, because the plaintiff's damage of $100,000 should be diminished by a sum proportional to the plaintiff's own fault, and Allied's and Bailey's propor-tional shares should each be further diminished by the sum that the plain-tiff received under the insurance policy.

169. While waiting for a bus, a man decided to go into a bar to use the public phone. One of the man's neighbors was seated at the bar when the man entered. Although the man realized that his neighbor was drunk, the man asked the neighbor for a ride home. The neighbor agreed and left with the man at once. Because he was drunk, the neighbor lost con-trol of his car and collided with a car driven by another driver, injuring the other driver and the man and damaging the other driver's car.

The man asserts a negligence claim for his injuries against his neighbor in a jurisdiction

that applies the all-or-nothing rule of con-tributory negligence. Which of the following arguments would be likely to provide the neighbor with an effective defense to that claim?

The man was contributorily negligent in accepting a ride from his neighbor when he knew his neighbor was drunk.

The man assumed the risk by accepting a ride from his neighbor when he knew his neighbor was drunk.

It did not matter that the man knew his neighbor was drunk.

The man was contributorily negligent and assumed the risk by accepting the ride when he knew his neighbor was drunk.

170. The Dartmouth Investor is a monthly publica-tion of interest primarily to persons who deal in the purchase and sale of historic buildings as an investment. It is read by approximately 1,000 subscribers each month. An issue of The Dartmouth Investor contained an article about the recent sale of Nixonia, an old house that had once been owned by a United States president. The article stated that Nixonia had been purchased by the plaintiff for $1,450,000. It described the plaintiff as a bank president earning a salary of $200,000 per year and stated that she had purchased Nixonia with part of the $1 million fortune that she inherited from her mother.

The plaintiff asserted a claim for invasion of privacy against The Dartmouth Investor on the ground that The Dartmouth Investor appropriated her identity by publishing the article about her without her permission. Which of the following would be The Dart-mouth Investor's most effective argument in defense?

(A) Information about the purchaser of Nixonia was of interest to readers of The Dartmouth Investor.


(B) The article about the plaintiff did not enrich The Dartmouth Investor because the plaintiff was not a celebrity.

(C) The sale of Nixonia to the plaintiff was a matter of public record.

(D) Publication of the article was not the result of actual malice.

171. For many years, powdered cement used by a factory was delivered in 90-pound sacks. Recently, however, factory officials deter-mined that it would be considerably less expensive to purchase unbagged cement. Since then, the factory has maintained a huge bin containing unbagged powdered cement in a yard outside its factory building. As a result of the factory's change to unbagged cement, the amount of cement dust in the air around its factory has increased substantially.

A landowner lived in the area. After the fac-tory began using unbagged cement, cement dust from the factory's operation continually settled on the cabin that the landowner occu-pied. Although the dust did no physical harm to the cabin or to the landowner, the land-owner complained to officials of the factory that the dust annoyed her. Because the fac-tory received no other complaints from area residents, however, it continued using unbagged cement.

The landowner asserts a negligence claim against the factory. Which of the following would be the factory's most effective argu-ment in defense?

(A) Changing from bagged cement to unbagged cement resulted in substan-tial financial savings to the factory.

(B) The factory's conduct was not a factual cause of the landowner's discomfort because no other residents complained about the dust.

(C) The landowner assumed the risk by con-tinuing to live in the area.

(D) The landowner sustained no damage as a result of the factory's conduct.

172. In a negligence action by the plaintiff against Able and Baker, the court found that the plaintiff's injuries were proximately caused by the combined negligence of Able and Baker and that Able and Baker were jointly and severally liable to the plaintiff in the sum of $100,000. The court also found that in producing the plaintiff's injury, Able was 40 percent at fault and Baker was 60 percent at fault. The jurisdiction has a statute recogniz-ing the right of contribution between joint tortfeasors, and that contribution shall be based on apportionment of fault.

After the entry of judgment, the plaintiff suc-ceeded in collecting $100,000 from Able. In an action for contribution by Able against Baker, which of the following correctly states the amount that Able is entitled to collect from Baker?

(A) 0.

(B) $40,000 (40 percent of $100,000).

(C) $50,000 (50 percent of $100,000).

(D) $60,000 (60 percent of $100,000).

173. An employee was driving a pickup truck owned by the company when he collided with an automobile owned and operated by a driver. A passenger in the driver's car subse-quently asserted a claim against the company, the employee, and the driver for injuries sus-tained in the accident. At trial, the jury fixed the amount of the passenger's damages and found that the employee was 40 percent at fault, the driver was 60 percent at fault, and the passenger was not at fault. It was also found that the employee was acting within the scope of his duties as an employee of the company when the accident occurred. In issu-ing a judgment for the passenger, the court held that the employee and the driver were jointly and severally liable for the passenger's injuries and that the company was vicariously liable for the employee's tort. The jurisdiction had statutes that adopted pure comparative negligence and recognized a right of contribution between joint tortfea-sors.

TORTS QUESTIONS 691

In enforcing the judgment, the plaintiff suc-ceeded in collecting $100,000 from the com-pany. If the company asserts a claim against the employee seeking compensation for the company's payment to the employee, the company is entitled to recover

(A) nothing, because the company was found to be vicariously liable for the employee's tort.

(B) $40,000 as partial indemnity.

(C) $50,000 as contribution.

(D) $100,000 as complete indemnity.

174. A biker was riding her bicycle in a reason-able manner when she was struck by a car negligently driven by a driver. As a result, the biker was thrown to the ground, breaking her left leg. A moment later, while lying in the road, the biker was struck by a car negli-gently driven by a second driver, breaking the biker's right leg.

If the biker asserts a claim against the second driver, the second driver will be held liable for damages resulting from

(A) the biker's broken right leg.

(B) the biker's broken right and left legs.

(C) the biker's broken right and left legs, but only if the first driver's conduct was foreseeable.

(D) neither leg.

175. As a result of a minor earthquake, the frame-work of a building that the builder was erect-ing on Pollard Street collapsed. When the builder began the building, he knew that the steel that he was using for that purpose was of poor quality but decided to use it anyway. If the steel had not been of poor quality, the earthquake would not have caused the build-ing to collapse.

A driver was employed by a gas company to operate a gasoline truck. She had parked the truck on Pollard Street in front of the build-er's construction site moments before the

earthquake. When the building collapsed, falling debris struck the truck, causing it to rupture and causing its cargo of gasoline to leak. A stream of gasoline that leaked from the truck flowed for three blocks until it reached Titus Street. There, unaware of the presence of gasoline, a man tossed a lit ciga-rette into the street. The cigarette caused the gasoline to explode, injuring a woman stand-ing nearby.

If the woman asserts a claim against the gas company driver, alleging that it was negligent for the driver to park a gasoline truck in front of a construction site, which of the following would be the driver's most effective argu-ment in defense against the woman's claim?

(A) The builder's use of poor-quality steel was a superseding cause of the wom-an's injury.

(B) The explosion would not have occurred if the man did not throw a lit cigarette into the street.

(C) The driver could not have anticipated that falling debris from the construc-tion site would cause the truck to rup-ture and leak.

(D) The explosion that injured the woman was proximately caused by the earth-quake.


After installing step-plates, test by stepping on one of them. If the door swings toward you instead of away from you, disconnect the automatic door-opener at once and make no further use of it until you


have called our hotline for further directions.

The store owner hired a contractor to install the automatic door-opener while the store was closed for the night. The contractor read the instructions furnished by the manufacturer but disregarded the above warning. When he finished installing the device, he did not test it by stepping on one of the step-plates, but advised the store's night manager that the job was complete. The following morning when the store opened, a customer entered to purchase a particular brand of soft drink. When he was attempting to leave, he stepped on the step-plate that the contractor had installed. Because of a short circuit in the step-plate, the door swung toward him, strik-ing and injuring his face.

The customer asserted a claim against the manufacturer on the ground that the step-plate was defective when sold by the manu-facturer. Which of the following would be the manufacturer's most effective argument in defense?

(A) It was not foreseeable that a person installing the automatic door-opener would disregard the warning contained in the instructions.

(B) The manufacturer did not act unreason-ably in designing or manufacturing the automatic door opener or in furnishing the instructions that came with them.

(C) The customer was not a purchaser of the automatic door-opener.

(D) The store owner was negligent in select-ing the contractor to install the auto-matic door-opener.

177. When the plaintiff was divorced from her husband, the court awarded custody of their three-year-old son to the plaintiff. The plain-tiff frequently permitted the boy to spend weekends with her ex-husband at the home of the ex-husband's father. One weekend, while the boy was visiting with the ex-husband, a friend of the plaintiff's phoned

her. The friend said that she heard that the ex-husband was planning to remove the boy from the state permanently.

Panicked, the plaintiff ran to the home of the ex-husband's father and pounded on the door. When the ex-husband's father came to the door, the plaintiff demanded, in a loud voice, that the ex-husband's father tell her where her ex-husband and her son were. The ex-husband's father knew that the ex-husband had taken the boy to the movies and would soon be returning. Because the plaintiff's manner frightened him, however, the ex-husband's father said that he had no idea where they were or when they were coming back and refused to talk to the plaintiff any further.

As a result, the plaintiff became highly upset. She visited her physician, who prescribed a mild tranquilizer, but she remained nervous until the ex-husband brought the boy to her home that evening.

The plaintiff asserts a claim against her ex-husband's father for intentional infliction of emotional distress. The court should find for the plaintiff

(A) because the plaintiff was treated by a physician for mental suffering that resulted from the ex-husband's father's refusal to tell her where her ex-husband and her son were.

(B) if it was unreasonable for the ex-husband's father to refuse to tell the plaintiff where her ex-husband and her son were.

(C) only if the ex-husband's father was cer-tain that refusing to tell the plaintiff where her ex-husband and her son were would cause the plaintiff to expe-rience mental suffering.

(D) only if the reasonable person would have known that refusing to tell the plaintiff where her ex-husband and her son were would cause the plaintiff to experience mental suffering.

TORTS QUESTIONS 693

178. A homeowner hired a painter to paint the outside of the homeowner's house. About two hours after the painter had finished the job and left, the homeowner noticed the painter's ladder lying across the homeowner's front lawn. The homeowner immediately phoned the painter, asking him to remove the ladder. The painter said he would come back for the ladder but did not do so.

Two days later, a government employee was walking across the homeowner's lawn while delivering mail. On several occasions in the past, the homeowner had asked her to use the sidewalk and not to walk on his lawn. The homeowner saw the employee walking toward the painter's ladder on his lawn but did not warn the employee because he believed that she saw it. Although the lawn had recently been mowed and the ladder was in plain view, the employee did not see the ladder and tripped over it, injuring her knee.

The jurisdiction applies the all-or-nothing rule of contributory negligence.

If the government employee asserts a negli-gence claim against the painter for damages resulting from her injury, which of the fol-lowing would be the painter's most effective argument in defense?

(A) The ladder was in plain view.

(B) The employee was trespassing at the time the accident occurred.

(C) The painter owed no duty to licensees of the homeowner.

(D) The homeowner was negligent in not warning the employee about the ladder.

179. One evening in Able's tavern, a 17-year-old girl drank alcoholic beverages that Able sold her. The girl then left and went to Baker's tavern, where she drank alcoholic beverages that Baker sold her. When the girl left Baker's tavern, she attempted to ride home on her scooter. Because the girl was intoxi-cated, she struck and injured a pedestrian. The pedestrian subsequently asserted claims

against Able and Baker under a state law that provides as follows: "If a minor under the age of 20 years injures another while intoxi-cated, any person who sold said minor the alcohol that resulted in said minor's intoxication shall be liable to the injured person."

The amount of alcohol that Able sold the girl would have made her intoxicated even if Baker sold the girl no alcohol at all, and the amount of alcohol that Baker sold the girl would have made the girl intoxicated even if Able sold the girl no alcohol at all. Which of the following statements is most correct?

(A) Able did not cause the pedestrian's injury because Baker subsequently sold the girl enough alcohol to make her intoxicated.

(B) Baker did not cause the pedestrian's injury because Able had previously sold the girl enough alcohol to make her intoxicated.

(C) Neither Able nor Baker caused the injury.

(D) Both Able and Baker caused the injury.

180. A landowner hired a professional architect to draw plans for a two-story residence to be constructed on the landowner's realty. The plans that the architect prepared called for a staircase to be supported by a single concrete pillar. The landowner then hired a licensed building contractor to construct a house in accordance with the architect's design. Upon examining the plans, the contractor told the landowner that she did not think that one pillar would provide sufficient support for the staircase. When the landowner discussed the contractor's objection with the architect, however, the architect insisted that one pillar would be sufficient. The landowner told this to the contractor and convinced the contractor to rely on the architect's plan.

The contractor completed the building as agreed and turned it over to the landowner on April 1. Two weeks later, the landowner


hired a mover to move a piano onto the sec-ond floor of the house. While the mover was carrying the piano up the staircase, the stair-case collapsed, causing the mover to sustain injury. If the staircase had been supported by two columns, it would not have collapsed.

If the mover asserts a negligence claim against the architect, which of the following would be the architect's most effective argu-ment in defense?

(A) It was reasonable to support the stair-case with only one pillar.

(B) The architect owed the mover no duty since the architect was employed by the landowner.

(C) The contractor had the last clear chance to avoid the accident.

(D) The use of a single pillar to support the staircase was a matter exclusively within the architect's professional judgment as an architect.

181. A man was obviously intoxicated when he entered a bartender's tavern one night and ordered a drink of Old Wesley alcoholic liquor. A statute in the jurisdiction prohibits serving alcoholic liquor to any intoxicated person. The bartender knew that the man was intoxicated, but because the man was a good customer, the bartender opened a new bottle of Old Wesley and poured him some of it. After drinking the liquor, the man left the tavern and began driving home.

The liquor that the bartender served the man was manufactured by Wesley. Before the liquor left Wesley's factory, an angry employee added a poison to it that could not have been discovered by reasonable inspec-tion. While the man was driving in a reason-able manner, the poison caused him to die. As a result, the man's car struck a pedestrian, injuring her.

If the pedestrian asserts a claim against the bartender based on the bartender's violation of the above statute, which of the following

would be the bartender's most effective argu-ment in defense against that claim?

(A) The bartender did not serve the man enough liquor to make him intoxicated.

(B) The statute was not meant to prevent people from drinking liquor that had been poisoned.

(C) Serving Old Wesley alcoholic liquor to the man was not a cause of the pedes-trian's injuries.

(D) The angry employee's conduct was a superseding cause of the pedestrian's injuries.

182. A company manufactures belt trucks, which are small, open-motor vehicles equipped with conveyor belts and used by airlines for han-dling baggage. The company's officials are aware that persons who maintain belt trucks frequently set the belt idle above 25. They are also aware that this can cause the belt truck to lurch forward when the belt is acti-vated unless it is equipped with an accelera-tion suppressor. For this reason, the company's design calls for every belt truck to be equipped with an acceleration suppressor.

Several months ago, the company learned that because of a factory error, it had sold to an airline a belt truck that was not equipped with an acceleration suppressor. The com-pany officials immediately notified the air-line, offering to install the acceleration suppressor without charge. The airline never responded to the notice.

Two months later, the airline went out of business and sold the belt truck to a second airline. An independent contractor hired by the second airline to maintain the second air-line's equipment set the belt idle above 25. Subsequently, an employee of the second airline attempted to activate the belt while standing beside the belt truck. She was injured when the belt truck lurched forward and struck her.

TORTS QUESTIONS 695

The employee asserted a negligence claim against the independent contractor. Which one of the following additional facts or infer-ences, if it was the only one true, would be most likely to result in a judgment for the independent contractor in a jurisdiction that applies the all-or-nothing rule of contributory negligence?

(A) Belt trucks are usually equipped with acceleration suppressors.

(B) If the employee had been in the driver's seat when she started the belt truck, she would not have been injured.

(C) The omission of an acceleration sup-pressor was a manufacturing defect in the belt truck.

(D) The first airline failed to notify the sec-ond airline about the need for an accel-eration suppressor.

183. A company operated a manufacturing plant just outside the town. Breezes frequently car-ried fumes from the company's plant into the town.

A homeowner's son developed a respiratory illness as the result of an unusual reaction to the fumes. The homeowner complained to the company about his son's illness. When the company responded by offering to buy the homeowner's house, the homeowner refused.

The homeowner asserted a public nuisance claim on behalf of his son in which he sought an order directing the company to eliminate the fumes. Which of the following would be the company's most effective argument in response to this claim?

(A) The claim is not for special damages.

(B) The son's illness was the result of an unusually sensitive reaction to the fumes.

(C) The homeowner assumed the risk by refusing to sell the property to the company.

(D) The fumes did not violate state pollution laws.

184. The manufacturer made a product known as Super Follicle, which was sold over the counter for the treatment of dandruff and dry scalp conditions. A doctor purchased a bottle of Super Follicle at a drugstore. A statement on the label read, "This product will not harm normal scalp or hair." The doctor used the product as directed. Because of a scalp condition making him allergic to one of the ingredients, the product irritated his scalp, causing him much pain and discomfort.

In an action by the doctor against the drug-store, which of the following would be the doctor's most effective argument?

(A) Any negligence by the manufacturer is imputed to the drugstore.

(B) The product was defective as labeled.

(C) The drugstore breached an express war-ranty.

(D) A drugstore is under a special duty to be aware of possible allergic reactions to products that it sells.

185. A roofer who was building a house on his own property had posted a sign that said, "No Trespassing." He was working on the framework of his roof when he found that he had brought the wrong board onto the roof with him. Without looking to see if anyone was around, he tossed the board to the ground.

A lumberjack was assigned to deliver lumber on the street where the roofer was building the house. The roofer had not ordered lum-ber, but when the lumberjack saw the roofer working on the roof of an unfinished house, he incorrectly assumed that the roofer was the person to whom he was supposed to deliver the lumber. He parked his truck at the curb and was walking across the roofer's property toward the unfinished house to talk to the roofer about the delivery when he was struck in the head by the board thrown by the


roofer. The lumberjack cried out in pain and then fell to the ground, unconscious and bleeding. The roofer saw it happen but merely shrugged and continued working.

A moment later, a passerby who had seen what happened called an ambulance. When it arrived, the lumberjack was still unconscious. The ambulance driver loaded the lumberjack into the ambulance and began driving to the hospital. Because of the ambulance driver's negligent driving, the ambulance struck a pole. The lumberjack was killed in the crash.

In a negligence action by the representative of the lumberjack's estate against the roofer, a court will most probably find the roofer

(A) liable for the lumberjack's death only if the roofer's negligence was a proxi-mate cause of the lumberjack's head injury.

(B) liable for the lumberjack's head injury if the roofer's negligence was a proxi-mate cause of it, but not liable for the lumberjack's death since the negli-gence of the ambulance driver was an intervening cause.

(C) liable for the lumberjack's head injury if the roofer's negligence was a proxi-mate cause of it, but not liable for the lumberjack's death since the ambu-lance accident was an intervening cause of it.

(D) not liable for the lumberjack's death, since the roofer's conduct was not a factual cause of the lumberjack's death.

186. A bird breeder purchased a sealed 50-pound package labeled "Pogue Seeds" from the dealer, who was in the business of selling supplies for bird and livestock breeders. The dealer had bought the sealed package from a wholesaler of seed and grain. Because of negligence at the wholesaler's plant, the seeds in the package were poisonous. The breeder ate some of the Pogue seeds while he

was mixing the bird food and became ill sev-eral hours later as a result.

Assume that the breeder is successful in his action against the dealer. If the dealer subse-quently asserts a claim against the wholesaler for total indemnification, the court will prob-ably find for

(A) the wholesaler, since the dealer is a joint tortfeasor.

(B) the wholesaler, unless the breeder named the wholesaler in the original action.

(C) the dealer, if the dealer was free from fault.

(D) the dealer, but only if a statute in the jurisdiction creates such a right.

187. Automobiles driven by Alvarez and Bosco collided in an intersection. Alvarez and Bosco asserted negligence claims against each other for damage to their vehicles. In addition, a passenger in Alvarez's car at the time of the accident asserted a negligence claim against both of them for her personal injuries. The claims were all consolidated and tried together. In answer to specific questions posed by the court, the jury found that the accident was 60 percent the fault of Alvarez and 40 percent the fault of Bosco. In addi-tion, the jury found that damage to Alvarez's car amounted to $1,000, that damage to Bosco's car amounted to $10,000, and that damage to the passenger amounted to $100,000. The court ruled that Alvarez and Bosco were jointly and severally liable for the passenger's injuries.

The jurisdiction had a statute that provided that "In any negligence action, a plaintiff's recovery shall not be barred by that plain-tiff's fault, but the recovery of said plaintiff shall be diminished in proportion to such plaintiff's fault unless that plaintiff's fault shall be greater than that of the defendant, and in such event the plaintiff's recovery shall be barred." Which of the following correctly states the sum that the passenger is entitled to receive from Bosco?

TORTS QUESTIONS 697

(A) $60,000 (60 percent of $100,000).

(B) $40,000 (40 percent of $100,000).

(C) $100,000.

(D) 0.

188. A minister delivered the benediction at the year's first meeting of the City Council of Gotham City. The following day, the Gotham Globe, a daily newspaper, printed an article about the meeting. The article referred to the minister's speech as "inspiring, considering the fact the minister suffers from leprosy." After seeing the article, the minister sued the newspaper for defamation.

The Gotham Globe moved to dismiss the minister's action on the grounds that his complaint contained no allegation of damage. Which of the following additional facts or inferences, if it was the only one true, would be most helpful to the minister in opposing the motion to dismiss?

(A) Leprosy is a loathsome disease.

(B) The minister was so upset upon reading the Gotham Globe's statement about him that he became physically ill.

(C) Editors of the Gotham Globe disliked the minister.

(D) The minister is neither a public official nor a public figure.

189. The company manufactures several kinds of puddings, which are marketed in packages labeled "Feedbags." Each package consists of an aluminum can containing pudding and a plastic spoon. The aluminum can is equipped with an "easy-open" lid that can be removed by pulling an aluminum ring fastened to the top of the can.

One morning, on his way to work, a man purchased a package of Feedbags from the grocery store. Later that day, while eating lunch, the man opened the package, removed the lid from the aluminum can, and began eating the contents with a spoon. After con-suming more than half the product, the man

noticed parts of a cockroach mixed with the pudding.

In an action by the man against the company, which of the following additional facts or inferences, if it were the only one true, would provide the company with its most effective defense?

(A) The company did not act unreasonably in manufacturing, packaging, or marketing the product purchased by the man.

(B) The man sustained no injury as a result of the presence of parts of a cockroach in the product.

(C) The company complied with all statu-tory requirements for quality control in the production of Feedbags.

(D) The man purchased the product on the recommendation of a sales clerk at the grocery store.

190. One night, police officers received a message that a burglary was in progress at a grocery store. Rushing to the location, they discov-ered that the back door of the store was open. Entering cautiously, they saw two burglars hiding in the storage room. In the ensuing attempt to affect an arrest in the dark, the officers knocked over several stacks of mer-chandise, including cases of bottled soda-pop manufactured by the company.

When the stacked groceries fell over, a bottle broke, and a fragment of flying glass struck one of the officers, injuring him. If the officer institutes an action against the store, the officer will

(A) win, since the fact that he was attempt-ing to apprehend a criminal who was burglarizing the store made him an invitee.

(B) win, if, but only if, the store's conduct was a physical cause of the harm.

(C) lose, since he was a bare licensee at the time the injury occurred.


(D) lose, if it was unforeseeable that persons would be running around the store-room in the dark.

191. A pilot was a commercial pilot who operated a package air-delivery service. Having been hired to deliver a parcel to an airport located 300 miles away, he had his plane filled with fuel supplied by an oil company. The fuel that was put into the pilot's fuel tank had been contaminated before leaving the oil company's refinery, but neither the pilot nor the oil company knew about the contamina- tion. After the pilot had flown 100 miles from the airport, the contaminants in the fuel caused his engine to fail. Ultimately, the pilot had to make an emergency landing.

The pilot was injured in the emergency land-ing and asserted a negligence claim against the oil company for his injuries. If it were the only one true, which of the following addi-tional facts would be most likely to result in a judgment for the pilot?

(A) The contaminated fuel furnished by the oil company was unreasonably danger-ous.

(B) The reasonable oil refining company would not sell fuel that it knew to be contaminated.

(C) A reasonable inspection of the fuel before it left the oil company's refinery would have revealed that it was con-taminated.

(D) Contaminated airplane fuel defeats the reasonable expectations of the reason-able consumer.

192. While waiting for a bus, a man decided to go into a bar to use the public phone. One of the man's neighbors was seated at the bar when the man entered. Although the man realized that his neighbor was drunk, the man asked the neighbor for a ride home. The neighbor agreed and left with the man at once. Because he was drunk, the neighbor lost con-trol of his car and collided with a car driven by another driver, injuring the other driver

and the man and damaging the other driver's car.

The other driver asserted a trespass to chattel claim against the neighbor for damage to his car. The court should find for the other driver

(A) if the possibility that the neighbor would collide with another vehicle would have been apparent to the reasonable sober person.

(B) only if the possibility that the neighbor would collide with another vehicle was apparent to the neighbor.

(C) because the neighbor intended to drive his car, and an unauthorized interfer-ence with the other driver's chattel resulted.

(D) only if the neighbor wanted to collide with another car or knew that he would do so.

193. A driver was employed by a gas company to operate a gasoline truck. She had parked the truck on Deck Street moments before an earthquake. When the nearby buildings col-lapsed, falling debris struck the truck, causing it to rupture and causing its cargo of gasoline to leak. The gasoline soon caught fire and injured a woman standing nearby.

If the woman asserts a claim against the gas company, alleging that the gas company is liable for the negligence of the driver, which one of the following additional facts or infer-ences, if it was the only one true, would be most likely to result in a judgment for the gas company?

(A) The driver parked the truck on Deck Street so that she could keep an appointment with her personal physi-cian.

(B) A statute in the jurisdiction prohibited parking gasoline trucks on Deck Street.

(C) A gas company rule prohibited parking any company truck on a public street

TORTS QUESTIONS 699

while the truck was loaded with gaso-line.

(D) The person employed by the gas com-pany to supervise the driver had spe-cifically instructed the driver not to park on Deck Street.


After installing step-plates, test by stepping on one of them. If the door swings toward you instead of away from you, disconnect the automatic door-opener at once and make no further use of it until you have called our hotline for further directions.

The store owner hired a contractor to install the automatic door-opener while the store was closed for the night. The contractor read the instructions furnished by the manufacturer but disregarded the above warning. When he finished installing the device, he did not test it by stepping on one of the step-plates but advised the store's night manager that the job was complete. The following morning when the store opened, a customer entered to purchase a particular brand of soft drink. When he was attempting to leave, he stepped on the step-plate that the contractor had installed. Because of a short circuit in the step-plate, the door swung toward him, strik-ing and injuring his face.

In a claim by the customer against the con-tractor, which of the following would be the customer's most effective argument?

(A) The contractor's liability is established by res ipsa loquitur.

(B) It was unreasonable for the contractor to disregard the warning contained in the instructions furnished by the manufac-turer.

(C) The automatic door-opener was installed in a way that made it unfit for ordinary use.

(D) The short circuit in the step-plate made the automatic door-opener defective.

195. A driver was driving her automobile on Ocean Road in the rain when she rounded a bend and saw a cow standing directly in her path. She immediately jammed on her brakes and pulled the steering wheel to the right in an attempt to avoid striking the cow. As a result, she lost control of her car, which skid-ded off the road and into the homeowner's yard.

In an action by the homeowner against the driver for negligence, which of the following arguments would be most effective as a defense for the driver?

(A) Her conduct did not result in damage.

(B) She was not required to act reasonably because she was confronted by an emergency.

(C) She was privileged by the doctrine of necessity.

(D) It was foreseeable that users of Ocean Road would deviate onto adjacent pri-vate land in connection with their use of the road.

196. A truck driver was injured when he was hit by a falling beam at a construction site. The truck driver was loaded into an ambulance and rushed to the hospital. However, due to the ambulance driver's negligence, the ambu-lance slid off the road and hit a tree, killing the truck driver.

If the representative of the truck driver's estate instituted an appropriate action against the ambulance driver under the state's


"wrongful death" statute, the court would be most likely to find for

(A) the ambulance driver, if the falling beam was foreseeable.

(B) the ambulance driver, since a rescuer is not under an obligation to use reason-able care in the face of an emergency.

(C) the truck driver's estate, since the ambu-lance driver's negligence was a proxi-mate cause of the truck driver's death.

(D) the truck driver's estate, unless the owner of the construction site is found to be liable for the truck driver's death.

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