TORTS BIG PICTURE OUTLINE

For torts you want to create a checklist of sorts, in order to be sure that you hit all
issues. Also, ALWAYS remember, you want to lay out the prima facie case, THEN the
defenses. A convenient way to do this is to make a list of important facts, and then match
the facts to the applicable tort. This ensures that you do not skip over issues.

I. Are there any INTENTIONAL TORTS?

a. First, lay out the prima facie case to the intentional tort. Also, remember
that ALL intentional torts require actual intent. Intentional torts do not
come about by accident. However, there does not always need to be
intent to harm, but rather if the defendant knows with substantial
certainty that a particular effect will occur.
i. BATTERY has there been an intentional offensive or
unwanted touching?
ii. ASSAULT has there been an intentional causing of an
apprehension of harmful or offensive contact (please note that
apprehension is NOT the same as fear).
iii. FALSE IMPRISONMENT intention to confine a person
within fixed bounds, with the defendant having no reasonable
means of escaping and being aware they are confined.
iv. INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS has there been an intentional or reckless
infliction of severe emotional distress, by extreme and outrageous
conduct, even in the absence of physical harm?
v. TRESPASS TO LAND has there been an intentional
entering on land without permission?
vi. TRESPASS TO CHATTELS has there been an intentional
interference with a persons use or possession of a chattel?
(Chattel being property, also bear in mind that here the defendant
pays damages, not the full value).
vii. CONVERSION has there been an intentional interference
with the possession or ownership of property that is substantial?
(This is where Defendant pays the full value of the property not
just damages).
b. Then, determine if any DEFENSES apply. Write about defenses only
AFTER you have laid out a prima facie case.
i. CONSENT plaintiff can expressly consent to an intentional
tort.
ii. DEFENSE OF PROPERTY a person may use reasonable
force to defend his or her property.
iii. SELF-DEFENSE a person is entitled to use reasonable
force to prevent any threatened harmful or offensive bodily
contact.
iv. DEFENSE OF OTHERS just like self defense, a person is
entitled to use reasonable force to protect others.

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 v. NECESSITY defendant may harm the property interest of
another when it is reasonably necessary to prevent greater harm.

II. Next, look to see if there is a claim for NEGLIGENCE

a. First, lay out the PRIMA FACIE CASE
i. Is there a DUTY? Remember, there is no general duty to act, but
for negligence to apply there always needs to be a duty, meaning a
duty to act as a reasonable person would under the
circumstances. (i.e., Bob had a duty to act as a reasonable bus
driver would under the circumstances)
ii. Was there a BREACH of that duty? Just because a person has a
duty, and there is an injury involved, does not automatically mean
that there is negligence, you always need a breach of said duty,
and you want to explain that breach fully.
iii. Is there CAUSATION, both actual and proximate cause?
iv. Have there been DAMAGES? What are you suing for? Dont
forget the injury or damages!
b. Then, and only after all of the above are addressed, discuss whether any
DEFENSES apply.
i. CONTRIBUTORY/COMPARATIVE NEGLIGENCE
if a plaintiff is negligent, the defendant may have their damages
reduced due to contributory negligence.
ii. ASSUMPTION OF THE RISK has the plaintiff assumed
the risk, that is, have they knowingly put themselves in risk?
c. Are there any other types of negligence?
i. STRICT LIABILITY
1. Are there any WILD ANIMALS?
2. Is anyone participating in ULTRAHAZARDOUS
ACTIVITIES?
ii. STATUTORY NEGLIGENCE/ NEGLIGENCE PER SE
1. Is there a statute in the fact pattern, and has there been a
violation of said statute?
2. First lay out whether the statute is a safety statute,
3. Then whether the statute was designed to prevent the
particular type of accident that occurred,
4. Then if the plaintiff was the type of person the statute
was designed to protect.
5. In addition, do NOT forget causation!
6. Any DEFENSES? Is following the statute excused?
iii. RES IPSA LOQUITOR
1. The thing speaks for itself
2. Is the event one that ordinarily does not occur in the
absence of negligence and,
3. Are other causes eliminated?

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III. Are there any other MISCELLANEOUS TORTS?
a. Has there been any DEFAMATION?
i. To establish a prima facie case for defamation, the plaintiff needs
to prove (note that the amount of fault changes depending on
whether the plaintiff is a public or private citizen):
1. A false or defamatory statement
2. Publication of said statement, by a person other than
Plaintiff (note that this doesnt have to be traditional
publication, but can be just one other person)
3. Fault on the part of D, amounting to at least negligence
and in some instances, malice.
4. Sometimes, special harm
ii. Are there any DEFENSES to Defamation?
1. Absolute Truth
2. Absolute privileges
a. Which apply even if defendant was motivated by
malice
b. Judicial proceedings, legislative proceedings,
governmental officials, husband and wife, consent
3. Qualified privilege
a. This privilege will be lost if acting based on malice
b. Protection of publishers interest
c. Interest of others
d. Public interest
e. Report of public proceedings
b. Is there any PRODUCTS LIABILITY?
i. STRICT LIABILITY
1. The seller of a product is liable without fault for personal
injuries caused by the product if the product is sold in a
defective condition.
2. There are three different types of defects
a. Design defect
b. A failure to warn
c. Manufacturing defect
ii. NEGLIGENCE
1. Was the seller or manufacturer negligent?
iii. WARRANTY
1. Express warranty when a seller expressly represents
something about the product that turns out to be false.
2. Implied warranty a seller warrants, impliedly, that an
item is mercantible. In some instances, a seller can also
warrant fitness for a particular purpose.
iv. Are there any DEFENSES? (depends on theory)
1. Knowing assumption of risk
2. Failure to discover the risk
3. Misuse of product
4. Failure to follow instructions

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 c. Has there been an INVASION OF PRIVACY?
i. INTRUSION
ii. MISAPPROPRIATION
iii. FALSE LIGHT
iv. PRIVATE FACTS
d. Has there been a MISREPRESENTATION?
i. Has there been a misrepresentation by defendant,
ii. with a culpable state of mind,
iii. with an intent to induce the plaintiffs reliance on the
misrepresentation,
iv. justifiable reliance by the plaintiff, and
v. damages? remember that, unlike contracts, in a misrepresentation
claim the plaintiff gets the difference between what they expected
to get and the value of what they received, not what they actually
paid and the value of what they received.
e. Has there been a NUISANCE?
i. PUBLIC has there been an interference with a right common
to the general public?
ii. PRIVATE has there been an unreasonable interference with
plaintiffs use and enjoyment of his land?

IV. Then, take time to think about other GENERAL CONSIDERATIONS

a. Is there any VICARIOUS LIABILITY?
i. Is there any employee/employer relationship? Has the employee
acted within the scope of his or her employment?
ii. This applies to all torts, even intentional torts, so long as the tort
is within the scope of the employment.
b. Are there MULTIPLE DEFENDANT PROBLEMS?
i. Joint tortfeasors? Can the plaintiff recover from more than one
person?
c. Finally, is the claim barred by an applicable STATUTE OF
LIMITATIONS?

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 Mini Essays

Question 1

Annie was scheduled to undergo surgery for removal of her tonsils. Doctor Jones,
her family doctor, was to perform the operation. The day of the surgery, Doctor Jones was
called out of town because of a family conflict. Even though there was no emergency, it was
decided by the hospital to go ahead with the operation and substitute Doctor Wells for
Doctor Jones. Doctor Wells is considered to be an expert in removing tonsils. Annie was not
informed of the switch in doctors.

If Annie sues Doctor Wells on a battery theory, who will prevail?

Question 2

Pamela Pamson was leaving the country for an extended vacation. Because there had
been a number of home burglaries in her neighborhood recently, she asked her friend,
Thomas, to look after her house. Thomas agreed to leave his car parked in Pamelas
driveway, pick up the mail, and turn on the lights in the house for a few hours each evening
and feed her two cats.
After a week, Thomas got tired of his housekeeping duties. About that time, he also
learned that Pamela was not a good friend. She had told a number of their mutual
acquaintances that Thomas was the only loser that had so little of a life that he could care
for her house. Thomas removed his car from the driveway, stopped picking up the mail,
left all the lights off in the house, and stopped feeding her cats. Thomas also writes Pamela,
telling her what he thought of her. He put the letter in an envelope with Pamelas key, and
tacked it to Pamelas front door. The outside of the envelope read TO PAMELA WHEN
SHE GETS BACK FROM HER OUT OF COUNTRY VACATION, FROM THOMAS
THE LOSER.

When Pamela returned from vacation, her home had been burglarized. The key and
Thomass letter were on the floor inside the front door, and there was no sign of a forced
entry.

If Pamela sues Thomas in negligence for damages resulting from the burglary, Pamela
should:

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 Torts MBE Questions

Question 1

A woman was being stalked by a former boyfriend, and was especially upset by the
frequent phone calls and visits to her home, where he serenaded her outside of her window
and recited very bad poetry. She was forced to move to a new city, in a desperate attempt to
get away from the boyfriend. When filling out a change of address form with the post
office, to have her mail forwarded, she specifically stated that the address was not to be
given to anyone under any circumstance.

Boyfriend could be a clever and charming fellow, which is how he ended up

convincing the woman to date him in the first place. After discovering the woman had
moved, he called the post office and gave the supervisor a tale of woe of the imminent death
of the womans beloved wealthy uncle, and stressed that he absolutely needed her new
address. Boyfriend succeeded in obtaining the new address from the supervisor, who was
moved by his tale.

Early one Saturday morning, Boyfriend parked across the street from Womans
modest apartment. As Woman emerged with her mother, Boyfriend raced across the street,
screaming that woman WOULD be his. Fearing for the safety of herself and her mother,
Woman fled. Boyfriend followed Woman, trying repeatedly to grab her, and making
disturbing growling sounds.

In desperation, Woman picked up a hoe left in the yard by Gardener doing his
Saturday morning maintenance. Boyfriend was momentarily deterred. During this moment,
Gardener returned and seeing Boyfriend apparently perilously close to decapitation by hoe,
seized Womans arms from behind and wrenched loose the hoe, dislocating Womans
shoulder. Boyfriend fled. Terrified by the course of events, the womans mother fainted.

If Woman sues Gardener, will she prevail?

(A) No, because Gardener was acting in defense of another.

(B) No, unless Gardener failed to act with reasonable care.
(C) Yes, because Gardener intended to cause her a harmful touching.
(D) Yes, unless Gardener was preventing a felony occurring in his presence.

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Question 2

Professor is a passenger on a plane, when the passenger sitting next to him kept
trying to talk to him. . The passenger had been drinking quite a lot, in fact, the flight
attendant had served him twelve drinks in a three hour period. The passenger continually
kept trying to engage the professor in conversation, but the professor just wanted to prepare
for the class he needed to teach when he landed. The professor could have moved to
another seat as the plane was not full, but he liked his window seat, and didnt want to pack
up his books and laptop. When he just put on his headphones, hoping that the passenger
would get the hint, the passenger picked up one of passengers heavy law books and hit the
professor over the head with it, knocking him unconscious.

What is the likely result if the professor sues the airline for battery?

(A) Professor will not prevail because the passenger was not an agent of the
airline.
(B) Professor will prevail if the flight attendant acted with reckless disregard.
(C) Professor will prevail if the offensive contact was intentionally inflicted.
(D) Professor will not prevail because he assumed the risk.

Question 3

Honey and Maureen had a long-running feud dating from the year Honey defeated
Maureen for the best chicken and dumplings at the county fair 20 years ago. Honey was tired
of the constant name calling that always occurred, as well as the animosity between the
neighbors. In order to try to end the feud, Honey invited Maureen and her family to a picnic
at Honeys farm. While their families ate, Maureen and Honey walked through the farm,
back through some cornfields. Knowing Honey to be afraid of snakes, Maureen suddenly
shouted, Look out! Theres a snake behind you! Honey jumped to one side in alarm, her
heart racing, but instead of a snake rattling, all she heard were shrieks of laughter emanating
from Maureen. Honey stalked back to the house and the feud is worse than ever.

If Honey sues Maureen for assault, will she prevail?

(A) No, because there was never a snake behind Honey.

(B) No, because Maureen could not put the touching in motion.
(C) Yes, because Honey suffered apprehension of a harmful touching.
(D) Yes, if Honey reasonably believed there was a snake behind her.

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Question 4

Sheri was driving along a two-lane road with Melissa in the passenger seat. In the
lane going in the opposite direction a car was passing a truck and did not see the car. Facing
a potential head-on collision, Sheri drove her car off the road, and onto a Farmers corn
field.
The farmer, having very little compassion for the potential life threatening situation,
was furious and drove his tractor as fast as he could toward Sheri and Melissa. He was
planning to swerve out of the way at the last moment, but his tire went flat, the tractor went
out of control, hitting Melissa.

If the farmer brings an action against Sheri for the damaged tomatoes, the farmer
should:

(A) Prevail, because Sheri did not have any privilege to enter the land.
(B) Prevail, because Sheri damaged the tomatoes.
(C) Not prevail, because Sheri entered the property to avoid serious injury
(D) Not prevail, because the farmer threatened the women with harm.

Question 5

A manufacturer of paint used to produce a particular fast drying paint that was later
discovered to be highly toxic, which is why they ceased production. During the
manufacturing operations, they negligently allowed toxic paint byproducts to leak into the
soil. The Environmental Protection Agency (EPA) ordered that the land, now occupied and
owned by a large shoe boutique, be decontaminated. All of this received quite a bit of press.

An employee of the boutique now sues the manufacturer in negligence for damages
for emotional distress. The employee claims to have suffered the distress as a consequence
of learning that she has been exposed to the toxic contamination for five years. Her
complaint does not allege that her emotional distress is severe, that the manufacturers
conduct was extreme and outrageous, or that she has suffered any physical consequences.

In that action the manufacturer has filed a motion to dismiss for failure to state a claim upon
which relief may be granted.

What is the manufacturers best argument in support of that motion?

(A) The employees emotional distress is not alleged to be severe.

(B) The employees proper remedy is in a claim against the boutique, her
employer, the occupier of the premises during the alleged exposure.
(C) The complaint does not allege that the manufacturers conduct was extreme
and outrageous.
(D) The complaint does not allege that the repair shop employee suffered any
physical consequences.

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Question 6

Professor is a passenger on a plane, when the passenger sitting next to him kept
trying to talk to him. . The passenger had been drinking quite a lot, in fact, the flight
attendant had served him twelve drinks in a three hour period. The passenger continually
kept trying to engage the professor in conversation, but the professor just wanted to prepare
for the class he needed to teach when he landed. The professor could have moved to
another seat as the plane was not full, but he liked his window seat, and didnt want to pack
up his books and laptop. When he just put on his headphones, hoping that the passenger
would get the hint, the passenger picked up one of passengers heavy law books and hit the
professor over the head with it, knocking him unconscious.

If Professor sues the airline on a negligence theory, what will be the most likely
result?

(A) Professor will prevail if the passenger intended to strike him.

(B) Professor will not prevail because the passenger was not an agent of the
airline.
(C) Professor will prevail if the flight attendant should have noted that the
passenger was becoming intoxicated.
(D) Professor will not prevail because he assumed the risk.

Question 7

A man had decided to move from California to Boston, and thus, was hoping to sell
his home rather quickly to pay for the move. The house was an elaborate, custom-designed,
large home with extensive large sun porches. However, the porches were in need of
extensive repair, which would have been time consuming and pricey. Rather than make the
repairs, the man added temporary supports that made the porches look solid but contributed
nothing to their structural soundness.

Buyer came to look at the house, impressed with the elaborate design. She was
enchanted with the porches, noting their excellent views, and stating how wonderful they
would be for parties. The Man pointed out how sturdy they were and commented that he
often had parties on the porches. The mans asking price for the home was $150,000.00
which reflected a realistic current market value if the home was in good repair. The actual
value of the home with the defective porches was $140,000.00. After some negotiations, the
buyer agreed to pay $147,000.00 for the home, contract documents were signed, escrow
closed and she moved in two months later. Seven months later, during the buyers summer
fundraiser for the new ballet company, the southern porch collapsed, injuring the ballet
mistress.

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 If the ballet mistress sues the man for his personal injuries, will the ballet mistress
recover?

(A) Yes, because the seller of real property is strictly liable for defective
conditions existing at the time of transfer of possession.
(B) Yes, because the man shored up the porch rather than properly repair it,
even though the condition was not discovered for seven months.
(C) No, because title to the real property has transferred to the buyer, making her
solely responsible.
(D) No, because the woman had a reasonable period of time to discover and
repair the defective porches.

Question 8

A man was stopped behind driver at a red traffic signal controlling a major city
intersection. The man was driving his new car that he had just bought a week earlier. When
the traffic signal changed to green and the man attempted to accelerate, the car lunged
forward, rear-ending driver.

Driver was severely jolted, banging his head against the glass rear window of his
pickup truck cab. He felt some pain in his lower back, but after exchanging addresses with
the man proceeded home, ate dinner, and then went to watch a hockey game as planned.

At the hockey arena, driver slipped in some spilled beer, which the hockey arena had
negligently failed to clean up, aggravating the back injury from the automobile accident, and
leading to paralysis.

In a suit by the driver against the man, the only evidence on liability offered by the
driver was an expert who testified that the carburetion system of the car was defective,
causing a surge in the gasoline supply at the time of initial acceleration. The man brings a
motion to dismiss.

How should the Court rule?

(A) Grant the motion, as there is no evidence of negligence by the man.

(B) Grant the motion, because the inference of negligence is not strong enough
to carry the burden of proof.
(C) Deny the motion, because the man has a non-delegable duty to maintain the
automobile.
(D) Deny the motion, because driver was injured by a defect in the automobile.

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Question 9

A woman was being stalked by a former boyfriend, and was especially upset by the
frequent phone calls and visits to her home, where he serenaded her outside of her window
and recited very bad poetry. She was forced to move to a new city, in a desperate attempt to
get away from the boyfriend. When filling out a change of address form with the post
office, to have her mail forwarded, she specifically stated that the address was not to be
given to anyone under any circumstance.

Boyfriend could be a clever and charming fellow, which is how he ended up

convincing the woman to date him in the first place. After discovering the woman had
moved, he called the post office and gave the supervisor a tale of woe of the imminent death
of the womans beloved wealthy uncle, and stressed that he absolutely needed her new
address. Boyfriend succeeded in obtaining the new address from the supervisor, who was
moved by his tale.

Early one Saturday morning, Boyfriend parked across the street from Womans
modest apartment. As Woman emerged with her mother, Boyfriend raced across the street,
screaming that woman WOULD be his. Fearing for the safety of herself and her mother,
Woman fled. Boyfriend followed Woman, trying repeatedly to grab her, and making
disturbing growling sounds.

In desperation, Woman picked up a hoe left in the yard by Gardener doing his
Saturday morning maintenance. Boyfriend was momentarily deterred.

During this moment, Gardener returned and seeing Boyfriend apparently perilously close to
decapitation by hoe, seized Womans arms from behind and wrenched loose the hoe,
dislocating Womans shoulder. Boyfriend fled. Terrified by the course of events, the
womans mother fainted.

If the woman sues the post office for negligence, will she prevail?

(A) No, because boyfriends intentionally tortuous acts were a superseding,

intervening force.
(B) No, because the post office was not an actual cause of the womans injuries.
(C) Yes, if the post office was negligent in releasing the womans address.
(D) Yes, if the woman had warned the post office of the need to keep her
address secret.

Question 10

Tania went out to eat at the Abbey, and after paying her bill she asked the waitress if
she could have some of the old wine bottles, as the labels were often decorative and
interesting.

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Moreover, that way Tania could remember what she drank, and whether she liked it, so she
would either shop for it on her own or request it at her next Abbey visit. The waitress, who
was quite busy with guests, pointed to a door at the rear of the restaurant and said, There
are some in the back room. Go ahead and look in there.

When Tania entered the storage room, it was dark. While searching for the light
switch, she tripped in a large indentation in the floor and fell to the concrete, fracturing a
vertebra. The waitress testified that she did not warn Tania about the indentation in the
floor, because it was their habit was to leave the lights on in the storage room at all times,
and that the light in the room had been on when she had been in it half an hour before she
sent Tania back.

In Tanias action for damages against The Abbey arising from this incident, Tania
will probably:

(A) Recover, because the waitress failed to warn her of an unreasonably

dangerous condition on the premises.
(B) Recover, because the waitress failed to determine whether the light was on
before sending Tania into the storage room.
(C) Not recover, because the waitress did not know the lights were out when
Tania entered the storage room.
(D) Not recover, because Tania assumed the risk when she entered a portion of
the premises not generally open to the public.

Question 11

Homeowner has six German Shepherd dogs that have been trained to be guard dogs,
and thus are quite ferocious and will attack intruders on to the property. The homeowner
has many Beware of Dogs signs posted around his fenced-in yard where he keeps the
dogs. The fence is quite high, and the dogs have never escaped or attempted to leave the
property. The mans next door neighbor frequently walks by the house, and, besides having
just read the signs, is well aware of the dogs ferocity. One day, the neighbor enters the yard
to retrieve a rake that the homeowner had borrowed a month ago. The neighbor was
attacked by one of the dogs and sustained serious injuries.

In a suit against the homeowner, is the neighbor likely to prevail?

(A) Yes, because the homeowner was engaged in an abnormally dangerous

activity.
(B) Yes, because the neighbor was an invitee for the purpose of retrieving his
property.
(C) No, because the neighbor knew that the man had dangerous dogs in the yard.
(D) No, because the neighbor was a trespasser.

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Question 12

Tenant had a dream. He wanted to open a theatre that would showcase classical
ballet and opera, rather than the modern ballet he had been seeing. He began looking for an
appropriate building erected during that era, with appropriate classical stages, in the heart of
downtown. Tenant soon received a call from landlord offering to lease a downtown 150-seat
theatre to Tenant. Landlord informed Tenant from the outset that he was willing to lease the
building at a discount because some of the overhead lighting was in need of repair. It was
not adequately secured; in fact, some had fallen during the recent earthquake. Landlord
suggested that Tenant repair the lighting, and ensure its safety, prior to opening the theatre,
but Landlord did not force or require Tenant to do any such repairs.

Tenant signed a five year lease, and hired a repairman to fix the lighting, and began
an advertising campaign with plans to open for business one month later. Response to his
concept was over-whelming, since many people were tiring of modern dance and longing for
classical ballets. The first 5 shows were sold out before the opening! The morning of
opening day, Tenant was informed that the lighting would not be completed for at least an
additional two days. Tenant reluctantly proceeded with the opening anyway.

The day after the opening, a 5.0 aftershock hit the city. A section of the lighting
hanging from the balcony fell, causing head injuries to patron, a customer at one of the
shows.

If patron sues landlord, who will prevail?

(A) Landlord, because Tenant became solely liable for the condition of the
premises as of the date he took possession.
(B) Landlord, because he disclosed the condition of the lighting to Tenant at the
time of the lease.
(C) Patron, because she was an invitee.
(D) Patron, because Landlord knew Tenant planned to use the building as a
theatre.

Questions 13 and 14 are based on the following fact pattern:

A man was stopped behind driver at a red traffic signal controlling a major city
intersection. The man was driving his new car that he had just bought a week earlier. When
the traffic signal changed to green and the man attempted to accelerate, the car lunged
forward, rear-ending driver.

Driver was severely jolted, banging his head against the glass rear window of his
pickup truck cab. He felt some pain in his lower back, but after exchanging addresses with
the man proceeded home, ate dinner, and then went to watch a hockey game as planned.

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At the hockey arena, driver slipped in some spilled beer, which the hockey arena had
negligently failed to clean up, aggravating the back injury from the automobile accident, and
leading to paralysis.

13. In a suit by driver against the hockey arena, medical experts testify that driver would not
have been paralyzed in the fall had he not experienced the automobile accident earlier in the
day.

What impact will this testimony have on the hockey arenas liability, if any, to driver?

(A) It will bar his recovery.

(B) Drivers recovery against the hockey arena will be limited to nominal
damages.
(C) Drivers recovery will exclude those injuries resulting from the auto accident.
(D) None.

14. Assume for the purposes of this question only that in drivers suit against the hockey
arena, the medical experts testified that driver would not have been paralyzed in the fall at
the hockey arena had he not experienced the auto accident earlier that day and that the initial
back injury could have been treated by any competent practitioner by immobilization in a
brace if driver had gone to the doctor immediately.

Assuming this action is brought in a comparative negligence jurisdiction, what is the

hockey arenas best argument for a reduction in the damages owed to driver?

(A) Damages should be reduced because of the doctrine of avoidable

consequences.
(B) Damages should be reduced because the hockey arena was only passively
negligent.
(C) Damages should be reduced because driver was contributorily negligent.
(D) Damages should be reduced because the hockey arena was not the legal
cause of drivers injury.

Question 15

Company owned a storage facility consisting of many 10,000-gallon tanks. They had
surrounded these tanks with a chain link fence. Unfortunately, in early 2009, company closed
the facility due to declining business and the rapid growth of residences around it.

Many people had been laid off, and as can be expected, this caused substantial
employee bitterness. In the four weeks since the employees had been laid off, the chain link
fence around the storage facility had been cut open every weekend.

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After each incident, the district manager would drive to the storage facility and arrange to
have it repaired within a day or two. After the fourth incident of vandalism, the district
manager found a childs jacket and cartoon lunchbox on the staircase that provided access to
one of the storage tanks.

The following Friday night, the district manager received yet another call from the
police alerting him to the fact that the fence had been cut open yet again. The manager then
called the repair company to have the fence repaired that upcoming Monday.

However, on Sunday morning, an eight year old boy was found unconscious in the
bottom of one of the empty tanks. Boys parents had reported him missing Saturday night.
The boy suffered moderate, but permanent, brain damage.

If boys parents, as his guardian ad litem, bring an action for negligence against
Company, what will be the likely result of the litigation?

(A) Judgment for the boy, because he is a trespassing child.

(B) Judgment for the company, because the intentionally tortuous act of
vandalism is an independent intervening cause of the boys injury, which
supersedes the companys negligence.
(C) Judgment for the company, because the boy knew he should not be climbing
on the storage tank.
(D) Judgment for the boy, if he did not appreciate the dangers posed by climbing
on the storage tank.

Question 16

Factory manufactures various kinds of paint. Their plant had been built in the 1930s
approximately 10 miles from the nearest city. The factory chose the particular location, away
from the city, because making the paint creates a particular unpleasant smelling odor. In the
last 10 years or so, the city has become a popular residential community and residences have
spread to within 200 yards of the factory.

If the factory is sued for nuisance by residents of the community, what is their best
defense?

(A) The odor causes coughing and wheezing in most of the population.
(B) Only 1 person in 1,000 is affected by the vapor.
(C) The factory was built long before the city became a residential community.
(D) Only the public prosecutor can sue for public nuisance.

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Question 17

A nine-year-old girl was playing catch with a few friends in front of her home.
During the game, the baseball was thrown in the street. The girl ran into the street but did
not look both ways and was struck by a car, driven by driver, who was driving 30 mph in
excess of the posted speed limit. The girl suffered a broken arm and leg as a result of the
accident.
However, when the accident occurred, the girl was also in violation of a statute that
required pedestrians to look both ways before crossing a street. This jurisdiction has a
traditional pure comparative negligence statute in effect.

If the girls parents, on their daughters behalf, assert a tort action against the driver
to recover personal injuries, the plaintiff will:

(A) Recover one-half damages, because she and the driver were both negligent.
(B) Recover nothing, because the girl was statutorily negligent.
(C) Recover full damages, if the driver was more at fault than the girl in causing
the accident.
(D) Recover full damages, if the girl acted as a reasonable child of like age,
intelligence and experience when she entered the street.

Question 18

Manufacturer produces a portable tv/radio. It is marketed under the name

PortaTV and Manufacturer advertises the portable tv/radio in pictures depicting people
taking baths with the PortaTV relatively close to the bathtub, with a bather listening to the
radio or watching tv. They are also marketed with picture of men and women watching tv
while cooking, with the PortaTV next to the kitchen sink.

Woman purchased a PortaTV product and plugged it into the electric outlet
alongside her bathtub. That night woman took a bath and turned on the tv, wanting to catch
her favorite crime drama. While in the bathtub, she reached out to get a loofah, and, as she
did, accidentally knocked over the PortaTV device and it fell into the bathtub. This caused
the woman to suffer an electrical shock that paralyzed her from the waist down.

As a result, the woman sued Manufacturer for strict liability. The box in which
PortaTV was sold provided a conspicuous warning alerting consumers of the danger of
electrical shock and advising them to be careful when placing the device near sinks or
bathtubs, or any water. In manufacturing the PortaTV products, Manufacturer could have
installed a rubber coating on each device that would prevent electrical currents from passing
through water. Manufacturer, however, decided not to use the rubberized coating because it
felt that it would detract from the aesthetic appeal and diminish consumer sales.

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 In her tort action against Manufacturer, Woman will:

(A) Not prevail, because the warning on the box cover was adequate.
(B) Not prevail, if Woman was negligent in knocking the light into the bathtub.
(C) Prevail, if failure to install the rubberized coating made the device
unreasonably dangerous.
(D) Prevail, because the manufacturer was aware of the danger associated with
placing PortaTV devices in electrical sockets near bathtubs.

Question 19
Anchor is a popular local news anchor. Recently, a reporter for a local newspaper
wrote a story about how Anchor has been having affairs with much younger women, some
of them underage. The reporter believed the story to be true, since he had heard the
allegations form women that supposedly had such affairs with the Anchor. In fact, it was
completely fabricated by the women.

If Anchor brings suit against the reporter for defamation, he most likely will:

(A) Prevail, if the story is false.

(B) Prevail, because the story concerned a purely private matter.
(C) Not prevail, if the reporter exercised reasonable care in ascertaining whether
the information was true or false.
(D) Not prevail, because the reporter is a public figure.

Question 20

On a commercial flight from New York to Las Vegas, a hijacking attempted was
discovered while the plane was in flight. However, due to fast acting flight attendants, the
hijacker was discovered and seized before any damage could be done, and the plane
proceeded to Las Vegas. Upon the planes arrival, television stations had cameras at the
gate, and began reporting on the incident, showing television clips of the passengers
disembarking safely. One such passenger was supposed to be in Detroit at a professional
conference, paid for by her company, and not in Las Vegas. Her boss saw her on various
news channels, and this resulted in the loss of her position and great embarrassment.

If the passenger asserts a claim against the television stations for using her picture
has she disembarked, is she likely to prevail?

(A) No, because the scene shown on television was newsworthy.

(B) No, because the humiliation and embarrassment did not result in
physical harm to the passenger.
(C) Yes, because the passengers location was revealed against her wishes,
and was merely a private matter.
(D) Yes, because publication of the pictures caused the passenger
pecuniary loss.

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 Torts MBE answer sheet

1. B
2. A
3. D
4. B
5. D
6. C
7. B
8. A
9. C
10. C
11. C
12. D
13. D
14. C
15. D
16. B
17. D
18. C
19. C
20. A

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