TORTS

EXPLANATORY ANSWERS
 Torts Answers 1.

Torts Answers
Answer to Question 1

(D) The woman will not recover in a suit for battery because the man’s contact did not constitute a
harmful or offensive contact. In order to establish a prima facie case for battery, the following
elements must be proved: (i) an act by the defendant that brings about harmful or offensive contact
to the plaintiff’s person; (ii) intent on the part of the defendant to bring about harmful or offensive
contact to the plaintiff’s person; and (iii) causation. Judged by this standard, the man’s conduct
in trying to keep the woman from falling in a crowded bus would not be harmful or offensive.
Contact is offensive if it would be considered offensive by a reasonable person of ordinary sensi-
bilities. It will be deemed “offensive” if the plaintiff has not expressly or impliedly consented to it.
Consent may be implied from custom, conduct, or words, or by law. Under these facts the consent
would be inferred as a matter of usage or custom. A person is presumed to consent to the ordinary
contacts of daily life, which would include contact resulting from assistance to a fellow passenger
in a crowded bus. (A) and (B) are incorrect. Even though the man intended to grab the woman’s
arm and touched the woman without her permission, the touching was not harmful or offensive
and therefore the man cannot be deemed to have committed a battery. (C) is incorrect. The fact
that the man prevented her injury is not the determining factor for him to prevail; rather, it is that
he acted with implied consent.

Answer to Question 2

(B) If the referee prevails, it will be because he did not know the door would strike the bullhorn,
so he did not have the intent to commit a battery. Battery requires: (i) an act by defendant that
causes a harmful or offensive contact to plaintiff’s person; (ii) intent to cause the harmful or
offensive contact; and (iii) causation. Here, there was a harmful contact caused by the referee.
The only consideration is whether the referee had the requisite intent. If a person knows with
substantial certainty the consequences of his action, he has the intent necessary for this type of
tort. If the referee did not know that the door was substantially certain to hit the bullhorn the fan
was holding, the referee did not have the intent necessary for battery. (For purposes of battery,
anything connected to or being held by the plaintiff is usually considered part of the plaintiff’s
person.) (A) is wrong because if the referee intended to cause a harmful contact (a battery), he
is liable for all of the consequences of his actions, whether he intended them or not. A defendant
need not foresee the extent of the injuries caused by his intentional act to be held liable for them.
(C) is wrong because this is not a case of self-defense. Self-defense is appropriate when a person
reasonably believes that he is being or is about to be attacked. Nothing in the facts shows any
basis for the referee to believe that the fan was going to harm him. Thus, self-defense is not appro-
priate here. (D) is wrong because it does not provide the referee with a defense. The fan’s conduct
angered the referee and may have triggered his actions, but because the fan’s conduct was not
sufficient to allow the referee to act in self-defense, the referee’s use of force here is not excused.

Answer to Question 3

(A) The driver is not liable for assault because he did not cause the pedestrian to reasonably appre-
hend an immediate harmful contact. The prima facie case for assault requires (i) an act by defen-
dant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to
plaintiff’s person, (ii) intent by defendant to bring about in plaintiff apprehension of that contact,
and (iii) causation. For there to be apprehension, plaintiff must be aware of defendant’s act at
the time that it is occurring. Here, because the pedestrian was oblivious to the driver’s attempt
2. Torts Answers

to scare her, the driver is not liable for assault. (B) is incorrect because whether the driver had
an intent to injure the pedestrian is irrelevant for purposes of assault. (C) is incorrect. While the
driver did have the intent to commit an assault, his act does not meet the requirements for the
prima facie case because his act did not cause reasonable apprehension. (D) is incorrect even
though the driver’s conduct was a substantial factor in causing the pedestrian’s injury (i.e., the
causation element would have been satisfied if damages were required for assault). Because the
driver did not cause an apprehension of contact on the pedestrian’s part, the driver is not liable for
assault.

Answer to Question 4

(C) The attorney will lose because the guard did not know that he was still in the building. For false
imprisonment, the plaintiff must show (i) an act or omission on the part of the defendant that
confines or restrains the plaintiff to a bounded area, (ii) intent on the part of the defendant to
confine or restrain the plaintiff, and (iii) causation. Here, because the guard apparently did not
know that the attorney was still in the building, she had no intent to confine him when she locked
the doors. (A) is incorrect because recklessness is not enough; while the attorney likely has a
cause of action for negligence against the guard, and through respondeat superior, the building,
his claim is for false imprisonment. For liability for false imprisonment, there must be an intent to
confine. (B) is incorrect because his status as a trespasser, while it may otherwise make him liable
to the building for trespass, does not preclude him from recovering for false imprisonment. (D)
is incorrect because the attorney need not show harm from the confinement to recover for false
imprisonment, as long as he was aware of the confinement.

Answer to Question 5

(C) The driver can recover for trespass to chattels because he can show that the value of his car has
been reduced as a result of the conduct of the body shop. Trespass to chattels requires (i) an act
of defendant that interferes with plaintiff’s right of possession in the chattel, (ii) intent to perform
the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv)
damages. The act of interference may be either dispossession of or damage to the chattel. Here,
the body shop employees interfered with the driver’s possession of his car by painting it contrary
to his instructions, and they intended to do the act (painting) that caused the interference. The
driver suffered damage because that conduct reduced the value of his car for advertising purposes.
Hence, the driver will be able to satisfy the prima facie case for trespass to chattels. (A) is wrong
because the fact that the driver won the race with the car does not establish absence of actual
damages. Any loss in value of the chattels will suffice. (B) is wrong because it is not necessary
for the driver to show negligence on the part of the body shop to recover. The driver can recover
damages for trespass to chattels without proof of breach of duty. (D) is wrong because emotional
distress alone is not sufficient to satisfy the actual damages requirement for the tort of trespass to
chattels, and the facts do not establish the requisite extreme and outrageous conduct for an inten-
tional infliction of distress action.

Answer to Question 6

(B) The champion will recover from the player for conversion. Conversion consists of (i) an act by
defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the
act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv)
damages—an interference that is serious enough in nature or consequence to warrant that the
defendant pay the full value of the chattel. Intent to trespass is not required; intent to do the act of
 Torts Answers 3.

interference with the chattel is sufficient for liability. Therefore, the player was guilty of conver-
sion when he intentionally (i.e., volitionally) took the champion’s board, which resulted in its loss,
even though the player did not intend to lose it or even realize that he had taken the property of
another. (A) is not the best answer because complete loss of a chattel, permitting the plaintiff to
recover its full value, is too serious an interference to be classified a mere trespass. Trespass to
chattels consists of: (i) an act by defendant interfering with plaintiff’s right of possession in the
chattel, (ii) intent to perform the act bringing about the interference with the plaintiff’s right of
possession, (iii) causation, and (iv) damages. Had the champion been able to recover the board,
and had he been able to show actual damages during the time of dispossession, he might have
been able to recover for trespass to chattels. (C) is wrong because the player’s good faith is irrel-
evant. Even if the conduct is wholly innocent, liability will attach when the interference with the
chattel is serious in nature. (D) is wrong because the fact that the player’s car was stolen does not
relieve him of liability. His initial trespassory interference with the champion’s backgammon set
was a substantial factor in its complete loss, because it would not have otherwise been in the trunk
of his car. Thus, the causation element for conversion is satisfied.

Answer to Question 7

(A) The man will prevail because the company used unreasonable force to protect its property.
One may use reasonable force to prevent the commission of a tort against one’s property, real
or personal. However, force that will cause death or serious bodily harm may not be used. In
addition, indirect deadly force may not be used when such force could not lawfully be directly
used. Here, the company kept the power running to prevent the theft of its copper. In effect, this
amounts to the use of indirect deadly force as a means of preventing a tort to personal property.
As explained above, use of such force to protect property is not permitted. Thus, the man will
prevail in his suit against the company. (B) is incorrect because it is too broad. Force may be used
to protect only property if such force is reasonable, regardless of whether it is directly applied or
indirectly applied by mechanical devices. The problem here is that the force used by the company
was unreasonable because it was deadly force. Regarding (C), it is true that an owner or occupier
of land owes no duty to an undiscovered trespasser. However, the company is not an owner or
occupier of the land on which the line runs, but simply the owner of the line itself and the holder
of an easement across the land. Thus, the company is held to the general duty of due care regard-
less of the man’s status, rather than the more limited duty owed by a landowner or occupier to a
trespasser. (D) is incorrect because the facts do not indicate that the man assumed any risk. To
have assumed a risk, a plaintiff must have known of the risk and must have voluntarily gone ahead
in the face of the risk. Here, the facts do not indicate that the man knew that electrical current
was still running through the line. In fact, because it was under construction and exposed, the
man likely assumed that the power was not running. Thus, he did not know of the risk and could
not have voluntarily assumed such a risk. Note also that, while the question does not indicate the
theory on which the man is basing his cause of action, it may be based on a theory of intentional
tort (specifically battery), in which case assumption of risk would not be an appropriate defense.

Answer to Question 8

(C) The cyclist is liable for damage to the lawn ornaments even though she had a privilege to enter the
landowner’s yard. Pursuant to the privilege of necessity, a person may interfere with property of
another where it is reasonably and apparently necessary to avoid threatened injury from a natural
or other force and where the threatened injury is substantially more serious than the invasion that
seeks to avert it. In cases of private necessity (where the act is solely to benefit a limited number
of people rather than the public as a whole) the defense is qualified, so that the actor must pay
4. Torts Answers

for any injury she causes. The cyclist was faced with serious injury from being struck by the car
door opening. Apparently the only way to avoid this injury was to swerve onto the landowner’s
yard. The threatened injury to the cyclist was substantially more serious than the cyclist’s entry
onto the landowner’s yard. Thus, the cyclist was privileged to enter the yard. However, because
this is a private necessity situation, she will be required to pay for the damage she caused to the
lawn ornaments. (A) correctly states that the cyclist is liable for the damage, but incorrectly states
that she was not privileged to enter upon the landowner’s land. On the other hand, (D) is incorrect
because it concludes that the cyclist’s privilege absolves her of liability for the damage she caused,
which is not true in private necessity cases. (B) is incorrect because the cyclist’s exercise of due
care is irrelevant. The landowner will be proceeding against the cyclist on a theory of intentional
tort (either trespass or conversion). Due care is a concept that is applicable to a negligence action,
but is not relevant to an action sounding in intentional tort. Therefore, the cyclist’s liability is
unaffected by whether she was exercising due care.

Answer to Question 9

(A) As an employer, the farmer breached his duty of care owing to the student and therefore is liable
for the student’s injuries on a negligence theory. To establish a prima facie case for negligence,
the following elements must be proved: (i) the existence of a duty on the part of defendant to
conform to a specific standard of conduct for the protection of the plaintiff against an unreason-
able risk of injury; (ii) breach of that duty by defendant; (iii) the breach of the duty by defendant
was the actual and proximate cause of plaintiff’s injury; and (iv) damage to the plaintiff’s person
or property. The first issue raised by these facts is whether the farmer owed a duty of care to
his employee. As a general matter, no legal duty is imposed upon any person to affirmatively
act for the benefit of others. However, the existence of a special relationship between the parties
may create a duty. Modern cases extend the duty to employers when employees are injured in
the course of employment. Thus, the farmer owed the student a duty to protect him against an
unreasonable risk of injury while he was acting within the scope of his employment. The farmer
breached this duty by not warning and instructing the student in how to act safely during an
electrical storm. The breach of that duty was the cause in fact and proximate cause of the student’s
injuries. An act or omission to act is the cause in fact of an injury when the injury would not
have occurred but for the act. The “but for” test applies where several acts combine to cause the
injury, but none of the acts standing alone would have been sufficient. But for any of the acts, the
injury would not have occurred. Thus, but for the farmer’s failure to instruct the student on how
to act during an electrical storm, the student would not have been injured. The farmer’s failure to
instruct is also the proximate cause of the student’s injuries. The general rule of proximate cause
is that defendant is liable for all harmful results that are the normal incidents of and within the
increased risk caused by his acts. This is an indirect cause case because an independent inter-
vening force (the lightning) came into motion after the farmer’s negligent conduct and combined
with it to cause the student’s injury. Independent intervening forces are foreseeable (and thus do
not cut off defendant’s liability) where defendant’s negligence increased the risk that these forces
would cause harm to the plaintiff. The farmer’s negligent failure to instruct the student about
the need to seek low ground during an electrical storm greatly increased the risk that the student
would be struck by lightning when the storm came up. Because the lightning was foreseeable
and brought about a foreseeable harmful result to the student, it was not a superseding force that
would cut off the farmer’s liability for the student’s injuries. (B) is incorrect because the student’s
minority does not create a duty toward him by the farmer. The duty of care arises out of the
employer/employee relationship. (C) is incorrect because, as noted above, the act of God (the
lightning) would not be a superseding intervening force since it was foreseeable. Here, the farmer
was negligent in not seeking to minimize the chances of the student’s being struck by lightning,
 Torts Answers 5.

when the farmer knew that such danger existed and owed the student such duty as a result of his
relationship (employer/employee) with the student. (D) is similarly incorrect because lightning
can be foreseeable and was foreseeable here. The rain and loud claps of thunder were a clear
signal that lightning might occur, and the farmer’s failure to warn the student created a foresee-
able risk that the lightning would strike him.

Answer to Question 10

(D) The neighbor is not liable because she did not know of the condition of the wire and the boy was
a licensee. In jurisdictions that distinguish between invitees and licensees, a licensee is a person
who enters land with the owner’s permission, for his own purpose or business rather than for the
owner’s benefit. The owner or occupier of land owes the licensee a duty to warn of or make safe
a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm
to the licensee and that the licensee is unlikely to discover. However, the owner or occupier has
no duty to a licensee to inspect for defects nor to repair known defects. The boy was a licensee
because he entered the neighbor’s land with her permission for his own purpose (retrieving the
ball) rather than for any benefit of the neighbor’s. The exposed electric wire created an unrea-
sonable risk of death or serious injury to the boy as he reached into the bushes. Because the
neighbor did not know of the presence and condition of the wire, she had no knowledge of any
risk of harm to the boy. Thus, no duty to warn the boy of the wire was triggered. (A) is incorrect
because the mere fact that the neighbor gave the boy permission to enter her land will not subject
her to liability for his injuries incurred thereon. The neighbor is not strictly liable for injuries to a
licensee, but only for any injuries caused by a breach of her duty to warn of dangerous conditions
known to her and that the licensee is unlikely to discover. (A) would impose liability even where
the neighbor had no knowledge of the condition of the wire. (B) is incorrect because, as noted
above, an owner of land does not owe a duty to a licensee to repair defects or dangerous condi-
tions. Likewise, (C) is incorrect because the owner of land is not under a duty to a licensee to
make an inspection to discover defects or dangerous conditions.

Answer to Question 11

(C) The court is not likely to grant the company’s motion because the jury must determine whether
the attractive nuisance doctrine applies. Under this doctrine, a landowner has a duty to exercise
ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing
children, caused by artificial conditions on his property. Here, while the company has presented
some evidence against application of the attractive nuisance doctrine, it is ultimately the trier of
fact’s role to determine whether the doctrine applies and whether the company exercised ordinary
care. Hence, the court will likely deny the company’s motion and allow the jury to make that
determination. (A) is incorrect because the jury could find that even though the company was
not aware of children trespassing, it should have anticipated that they might try to sneak onto the
property because it was an amusement park operation. (B) is incorrect because even though the
girl knew she was trespassing, the jury could find that she did not appreciate the risk of playing on
the rides. (D) is incorrect because the fact that the girl was attracted onto the land by the artifi-
cial condition is just one factor for determining whether the attractive nuisance doctrine applies.
Foreseeability of harm to a child is the true basis of liability.

Answer to Question 12

(B) The swimmer cannot recover from the resort because he did not have invitee status when he
was injured. In jurisdictions following the traditional rules for landowners and possessors of
6. Torts Answers

land, the nature of a duty of an owner or occupier of land to those on the premises depends on
the legal status of the plaintiff in regard to the property, i.e., whether the plaintiff is a trespasser,
licensee, or invitee. An invitee is a person who enters onto the premises in response to an express
or implied invitation of the landowner. Those who enter as members of the public for a purpose
for which the land is held open to the public and those who enter for a purpose connected with
the business or other interests of the landowner are considered invitees. However, a person will
lose his status as an invitee if he exceeds the scope of the invitation—if he goes onto a portion of
the property where his invitation cannot reasonably be said to extend. Here, the swimmer was an
invitee of the resort in the areas to which it allowed its patrons to go. However, the resort clearly
identified the boundaries of the area held open to swimmers, and the swimmer could not reason-
ably have believed that he was invited to swim in the area where he was injured. Because the
swimmer was at most a licensee when he was injured, the resort did not owe him a duty to make
reasonable inspections of that area to discover dangerous conditions and make them safe. At
most, the resort had a duty only to warn the swimmer of known dangerous conditions that create
an unreasonable risk of harm to him and that he is unlikely to discover, and nothing in the facts
indicates that any employees of the resort knew of the stake under the water. The swimmer there-
fore cannot recover against the resort. (A) is not as good a choice as (B). While a landowner is not
liable for a dangerous condition that is obvious to the entrant on the land, the fact that the stake
was visible does not establish that it was obvious, given that the swimmer was looking forward
rather than down. Whether a danger is obvious is determined by all of the surrounding circum-
stances, not just whether the danger is visible. The better reason why the swimmer cannot recover
is because he was no longer an invitee. (C) is incorrect because the lifeguard’s failure to direct the
swimmer to the swimming area would not constitute an invitation to swim in the restricted area;
at most, it would establish only that the swimmer was a licensee rather than a trespasser when he
swam in that area. A licensee is one who enters onto land with the possessor’s permission, express
or implied, for his own purpose or business rather than for the possessor’s benefit. The lifeguard’s
conduct may have constituted implied permission for the swimmer to exit the lake in a nonswim-
ming area for his own benefit, but it does not establish that he reasonably believed that he was
invited to swim in that area. (D) is incorrect because the swimmer lost his status as an invitee
when he exceeded the scope of his invitation by swimming in an area where swimming was not
permitted.

Answer to Question 13

(B) The injured motorist may recover damages from the lot owner because the jury found that the lot
owner should have foreseen that motorists could be injured if the hedge was not cut back. The lot
owner owes the duty of an owner and occupier of land to those off the premises for unreasonably
dangerous artificial conditions. In contrast to overgrown weeds, which are a natural condition
for which no duty is owed absent a statute, a hedge is considered an artificial condition, analo-
gous to a fence. Hence, by letting the hedge become so large that it created a foreseeable danger
to motorists by obstructing their vision, the lot owner has breached his duty to the motorist. The
other elements of the motorist’s negligence action (besides a duty and a breach of the duty) are
actual and proximate cause, and damages. The motorist can establish actual cause by showing
that, although she failed to notice the stop sign, she would have noticed another car traveling on a
collision course with hers; i.e., but for the overgrown hedge, the motorist would have been able to
avoid the accident. Proximate cause in an indirect case such as this can be established by showing
that any intervening forces were foreseeable and not superseding. The other motorist’s negligent
failure to stop may also have been caused in part by the overgrown hedge and is a foreseeable
intervening force that does not break the chain of causation. Hence, (C) is incorrect. Under pure
comparative negligence, the injured motorist can recover 10% of her damages even though her
 Torts Answers 7.

fault was greater than that of the lot owner. (A) is incorrect because a pure comparative negli-
gence jurisdiction allows a plaintiff to recover no matter how great her negligence is. Thus, even
though the motorists are both 45% at fault and the lot owner is only 10% at fault, the motorist can
recover 10% of her damages from the lot owner. (D) is incorrect because, as discussed above, the
lot owner is still liable for some damages in a pure comparative negligence jurisdiction even if his
fault was only slight.

Answer to Question 14

(A) The court is most likely to grant the motorist’s motion. This statute was designed to protect roads
from being damaged by studded snow tires. The pedestrian does not have a case for negligence
based on violation of the statute, because the pedestrian is not a member of the class the statute
was designed to protect. The statute was designed to protect roads from damage to the metal
studs, not people. The pedestrian may have had a cause of action based on a breach of ordinary
care, but the facts tell us that the pedestrian only presented evidence of violation of the statute. So
the court will grant the defense’s motion. (B) is incorrect. If a motor vehicle statute is applicable,
its violation will be sufficient evidence of negligence. (C) is wrong because the statute must be
applicable before violation of the statute can be considered negligence per se. (D) states a rationale
applicable to constitutional law rather than torts. The statute may be constitutionally valid, but it
does not establish liability here.

Answer to Question 15

(B) The bus driver is liable to the landowner in a negligence action. The driver of a vehicle on a public
road owes to foreseeable plaintiffs a duty of ordinary, reasonable care to refrain from creating
an unreasonable risk of injury in the operation of the vehicle. In trying to light a cigarette while
driving the bus, the bus driver created an unreasonable risk that he would lose control of the
bus, thus endangering the physical safety and the property of other drivers on the road, pedes-
trians, and owners of property adjoining the road. There was a foreseeable risk of injury to the
landowner or her property arising from the manner in which the bus driver drove the bus; thus,
the duty of care extended from the bus driver to the landowner. This duty was breached when
the bus driver drove the bus so as to create an unreasonable risk of injury to the landowner or her
property. It was reasonably foreseeable that a pedestrian endangered by the manner in which the
bus driver drove the bus would be compelled to enter the landowner’s property and would damage
the zinnias. By forcing the pedestrian to jump off the road to save his life, the bus driver actually
and proximately caused the damage to the zinnias; where a defendant’s actions cause another to
react, liability will attach for any harm inflicted by the reacting person on another. Thus, the bus
driver can be held liable in negligence for the damage to the landowner’s zinnias. (C) is incor-
rect because the manner in which the bus driver operated the bus created a foreseeable risk of
injury to the person or property of someone who owns property adjoining the road. Therefore,
the general duty of due care owed by the bus driver in his operation of the bus extended to the
landowner and her zinnias. (A) is incorrect because the bus driver lacked the intent to bring about
a physical invasion of the landowner’s property. Absent such intent, there can be no liability for
trespass. The bus driver was negligent in his operation of the bus, and this caused the pedestrian
to enter the landowner’s land. However, the bus driver neither acted with the purpose of forcing
the pedestrian onto the landowner’s land nor did he act knowing with substantial certainty that
this consequence would result. Therefore, the bus driver did not have the intent needed to support
an action for trespass. (D) is incorrect because none of the circumstances in which indemnity
is available is present. Indemnity involves shifting the entire loss between or among tortfeasors.
One held vicariously liable may obtain indemnification from the person whose conduct actually
8. Torts Answers

caused the damage. The bus driver will be held liable for his own negligence in driving the bus,
not vicariously for any conduct of the pedestrian’s. Thus, this basis for indemnity does not apply.
It is also possible for one tortfeasor to recover against a co-joint tortfeasor where there is a consid-
erable difference in degree of fault. Here, the bus driver is primarily at fault. He was negligent in
driving the bus, while the pedestrian merely reacted to save himself from death or serious injury,
and was apparently not negligent at all. Thus, it is the bus driver who is the “more wrongful”
tortfeasor, thereby precluding recovery of indemnity from the pedestrian on this basis as well.

Answer to Question 16

(A) The court should deny the driver’s motion because a jury could find that a reasonable person,
observing a ball roll into the street, would slow down further to avoid the foreseeable risk of
hitting a child darting into the street. (B) is wrong because the parents’ potential negligence, even
if it gave rise to a contribution claim by the driver against them, would not cut off the child’s
claim against the driver, because the driver’s negligence would remain both an actual and a proxi-
mate cause of the accident—even if parental negligence was also a cause. A parent’s negligence
ordinarily is not imputed to a child, and no other basis appears from the fact pattern for doing
so. Hence, the driver’s motion would not be denied for that reason. (C) raises the possibility of a
contributory negligence defense. A child, however, is usually held to the standard of a reasonable
child of like age, intelligence, and maturity. The facts tell us nothing about the child’s age, intel-
ligence, and maturity, and it will be up to the jury to determine whether the child was negligent.
(D) is wrong because reasonable care in the circumstances could require driving at less than the
speed limit, as noted above.

Answer to Question 17

(D) The neighbor will not recover from the homeowner because even if the homeowner acted negli-
gently in setting the ladder atop a patch of ice, this negligence did not cause the injury to the
neighbor. A person generally is under no duty to assist another. Therefore, the homeowner was
under no duty to assist the neighbor. However, having gratuitously undertaken to do so, the
homeowner came under a duty to act as an ordinary, reasonable person while rendering such
assistance. He breached this duty by setting the ladder atop the patch of ice, thus creating an
unreasonable risk that the ladder would slip while the neighbor was climbing down, causing him
injury. However, the homeowner is not liable for the neighbor’s injuries unless the homeowner’s
breach of duty caused those injuries. Before a defendant’s conduct can be considered a proximate
cause of the plaintiff’s injury, it must first be a cause in fact (actual cause) of the injury. An act is
the cause in fact of an injury when the injury would not have occurred but for the act. Here, the
neighbor’s fall and injuries would not have occurred but for the rotten rung. There is no indica-
tion that the homeowner’s negligence in placing the ladder on the ice contributed in any manner
to the injuries. If the homeowner had carefully placed the ladder on a solid, ice-free surface, the
neighbor would have incurred the same injury by stepping on the rotten rung. Therefore, the
homeowner’s negligence was not a cause in fact of the neighbor’s injuries. Because the element
of causation is missing, the homeowner will not be liable for the injuries to the neighbor. (A)
is wrong because the homeowner’s negligent placement of the ladder was not the cause of the
neighbor’s injury. Rather, the neighbor fell as a result of stepping on the rotten rung. Thus, it
cannot be said that the homeowner’s negligent conduct caused the injury to the neighbor. (B) is
wrong because the homeowner’s assumption of the duty to aid the neighbor does not render him
absolutely liable for all injuries incurred. As explained, the homeowner did assume the duty to act
reasonably in aiding the neighbor, and he did breach his duty by placing the ladder on ice. Never-
theless, this breach of duty did not cause the injuries to the neighbor. Thus, if the homeowner’s
 Torts Answers 9.

negligence did not cause the injury to the neighbor, he cannot be held liable, even if he was negli-
gent. Regarding (C), while it is true that it was foreseeable that the neighbor would be injured as a
result of the homeowner’s negligent conduct (i.e., that the ladder would slip on the ice, causing the
neighbor to fall and be injured), it is also true that the neighbor was not injured as a result of the
homeowner’s negligence. The homeowner cannot be held liable for something that was not in any
way caused by his negligent conduct. Therefore, (C) is incorrect.

Answer to Question 18

(D) The court should grant a directed verdict for the trainer because the airplane owner has not shown
that the trainer breached any duty that he owed to him. A prima facie case of negligence requires
plaintiff to show the following elements: (i) the existence of a duty on the part of the defendant to
conform to a specific standard of conduct for the protection of the plaintiff against unreasonable
risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual
and proximate cause of plaintiff’s injury, and (iv) damage to plaintiff’s person or property. Here,
it is doubtful that the trainer’s releasing his pigeons created any duty to other users of the park. To
the extent that it did, the fact that he had taken great care to train them to return directly to their
roosts indicates that he did not breach his duty to the airplane owner. Because the airplane owner
has offered no other evidence of negligence, nor any reason to impose strict liability on the trainer
(as discussed below), the trainer’s motion for a directed verdict should be granted. (A) is incorrect
because that choice suggests the imposition of a strict liability standard on the trainer. The owner
of a domestic or inherently nondangerous animal is not strictly liable for the injuries it causes. The
conduct of the trainer’s homing pigeon would not make the trainer liable in the absence of some
negligence on his part. And, as discussed above, there is no evidence of negligence here. While this
choice establishes the causation element, the breach of duty element is not established. (B) is incor-
rect because the doctrine of res ipsa loquitur applies only to situations where the fact that a partic-
ular injury occurred itself establishes that defendant breached a duty. If the doctrine is applicable,
no directed verdict may be given for defendant because plaintiff has established a prima facie case.
However, the accident must be the type that would not normally occur unless someone was negli-
gent. The collision between the trainer’s homing pigeon and the model airplane is not that type of
accident; by itself, it provides no suggestion that anyone was negligent. (C) is incorrect because
the truck is not a superseding force that breaks “the causal connection” between the action of the
trainer’s pigeon and the airplane’s destruction. In indirect cause cases, where a force came into
motion after defendant’s act and combined with it to cause injury to plaintiff, defendant will still
be potentially liable for foreseeable intervening forces that are within the increased risk caused by
his acts. Even if the intervening force is independent (i.e., not a natural response or reaction to the
situation), it will be foreseeable where defendant’s negligence increased the risk that the indepen-
dent force would cause harm. Hence, if the trainer were negligent in releasing his pigeon, the fact
that the destruction of the airplane was directly caused by the truck would not relieve the trainer
from liability, because the initial collision with the pigeon caused the airplane to go out of control
and created a substantial risk that it would be damaged by an intervening force.

Answer to Question 19

(D) The inspector will likely prevail. Under the doctrine of res ipsa loquitur, the trier of fact is
permitted to infer the defendant’s breach of duty when the facts strongly indicate that the plain-
tiff’s injuries resulted from the defendant’s negligence. The facts here indicate that, because the
elevator was not controllable from the first floor, the elevator would not have descended unless
someone from the second floor changed it to “on” and pushed the down button. The fact that
someone started the elevator while the inspector was in the shaft is circumstantial evidence that
10. Torts Answers

either the foreman was negligent (e.g., by failing to apprise his co-workers of the inspector’s
presence in the shaft) or one of his co-workers was negligent (e.g., by forgetting the foreman’s
warning and turning the elevator back on). Thus, under the doctrine of res ipsa loquitur, the
inspector would be able to show that, through respondeat superior, the print shop breached a duty
owing to him. Thus, (A) is incorrect. (B) is incorrect because the inspector’s status is irrelevant.
A possessor of land owes a duty of reasonable care in the exercise of all active operations on the
property, regardless of whether the plaintiff was a licensee or invitee. Thus, regardless of the
inspector’s status, the print shop owed a duty of reasonable care in its employees’ operation of the
elevator. (C) is incorrect because it may have been another employee who was negligent.

Answer to Question 20

(A) The court should grant the cruise ship owner’s motion because the passenger has not established
a prima facie case of negligence against the cruise ship. To establish a prima facie case for negli-
gence, a plaintiff must show (i) a duty of care, (ii) breach of that duty, (iii) actual and proximate
cause, and (iv) damages. As a common carrier and/or an innkeeper, the cruise ship owed its
passengers a high duty of care, and therefore would be liable for slight negligence. However,
the passenger has offered no evidence to establish that the cruise ship employees breached that
duty, and res ipsa loquitur is not applicable here because the collision with the whale swimming
underwater is not the type of event that would occur only as a result of negligence. Because
the passenger failed to establish breach of duty, the court should grant the cruise ship owner a
directed verdict. (B) is incorrect because the cruise ship owner does not need that evidence to
prevail. While evidence that a person in normal health would not have been injured by the bump
supports the cruise ship’s other evidence that it exercised due care, it is not necessary because the
passenger has failed to offer evidence that the cruise ship owner breached its duty. On the other
hand, if the cruise ship owner had breached its duty of care to its passengers, the fact that a person
in normal health would not have been injured by the bump on the head would not be a defense to
liability. If a defendant’s negligence causes an aggravation of a plaintiff’s existing physical illness,
the defendant is liable for the damages caused by the aggravation. (C) is incorrect because, as
discussed above, the passenger has failed to present evidence that the cruise ship owner breached
the high duty of care that it owed to its guests. (D) is incorrect even though it is a true statement
of law, as discussed above. The reason the cruise ship owner prevails is because the passenger has
failed to establish a prima facie case.

Answer to Question 21

(D) The court should grant the motion because the driver did not establish the cause-in-fact element
of his prima facie case against the freight line. The primary test for cause in fact (actual cause) is
the “but for” test: An act is the cause in fact of an injury when the injury would not have occurred
but for the act. Even though the freight line had a duty created by the statute to be able to stop its
train within 200 yards of first braking, and breached that duty (establishing the first two elements
of the driver’s prima facie case), it must still be shown that the collision would not have occurred
in the absence of the breach. Because the car was only 150 yards from the point of braking, even
a train in compliance with the statute would have struck it. Since no other evidence of negligence
has been presented, the motion should be granted. (A) is incorrect because establishing the freight
line’s “negligence per se” through violation of the statute only establishes a conclusive presump-
tion of duty and breach of duty; the plaintiff must still prove causation. (B) is incorrect because
generally violation of a statute does not create strict liability; even if it did in this case, the plain-
tiff would still have to prove causation as part of the prima facie case for strict liability. (C) is
not correct because the court will not reach the issue of the plaintiff’s contributory negligence in
 Torts Answers 11.

this case because the prima facie case for the defendant’s negligence has not been established.
Furthermore, establishing the plaintiff’s contributory negligence by violation of a statute uses
the same rules that govern whether a statute can establish the defendant’s negligence. Hence, the
driver’s violation of the crossing statute may be excused if the trier of fact determines that compli-
ance was beyond his control because his car stalled.

Answer to Question 22

(B) The court should grant the motion because the evidence establishes that the car was a superseding
force that cut off the doorman’s liability for his negligence under proximate cause principles. The
general rule of proximate cause is that the defendant is liable for all harmful results that are the
normal incidents of, and within the increased risk caused by, his acts. An indirect cause case is
one where the facts indicate that a force came into motion after the time of defendant’s negligent
act and combined with the negligent act to cause injury to the plaintiff. Whether an intervening
force will cut off the defendant’s liability for the plaintiff’s injury and be deemed superseding
is determined by foreseeability. Here, nothing in the facts suggests that a car jumping the curb
was a foreseeable consequence of the doorman’s negligently locking the door. Hence, the judge
should grant the motion because the worker has failed to establish the proximate cause element of
his prima facie case. (A) is wrong because the doorman was also an actual cause of the worker’s
injuries—but for the doorman’s negligence, the worker would not have been on the sidewalk
where the car jumped the curb. (C) is wrong because it establishes only actual cause. A directed
verdict is appropriate because no evidence establishes the proximate cause element of the worker’s
case. (D) is wrong because the facts do not establish foreseeability. While the doorman’s negli-
gence was a concurring actual cause of the worker’s injury, it was not a proximate cause because
the injury that occurred was unforeseeable.

Answer to Question 23

(C) The designer will prevail because the assassin’s actions were an unforeseeable intervening force.
To establish a prima facie case for negligence, the following elements must be proved: (i) the
existence of a duty on the part of the defendant to conform to a specific standard of conduct for
the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by
the defendant; (iii) the breach of the duty by the defendant was the actual and proximate cause
of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. The general rule of
proximate cause is that the defendant is liable for all harmful results that are the normal incidents
of, and within the increased risk caused by, his acts. An indirect cause case is one where the facts
indicate that a force came into motion after the time of defendant’s negligent act and combined
with the negligent act to cause injury to the plaintiff. Whether an intervening force will cut off
the defendant’s liability for the plaintiff’s injury and be deemed superseding is determined by
foreseeability. Here, the designer, as a professional designing a component of a plane, owed a duty
of care to passengers such as the officer. He breached that duty of care by using a design for the
conduit system that had been rejected in the industry because of the danger of pressure loss. His
breach was the actual cause of the officer’s harm because, but for his use of that design, the snakes
would not have gotten into the passenger compartment of the plane. However, the conduct of the
assassin in causing snakes to be placed on the plane is an unforeseeable intervening force. While
criminal acts of third persons may be foreseeable if the defendant’s negligence increased the
likelihood of the crime being committed, there is nothing to suggest that the designer’s negligence
had any influence on the assassin’s conduct. Hence, that conduct cuts off the designer’s liability
to the officer for the negligent design of the conduit system. (A) is incorrect. To establish strict
tort liability, the plaintiff must prove that the defendant is a commercial supplier of a product.
12. Torts Answers

The designer, however, provided a service of designing a conduit system in a plane; because the
facts do not suggest that he is a commercial supplier of a product, he cannot be held strictly liable.
(B) is incorrect. Even assuming that the designer would be held to the high degree of care that
common carriers owe their passengers, the officer must still establish the other elements of the
tort. As discussed above, he would not be able to establish proximate cause under these facts. (D)
is incorrect because the response by the other passenger is a foreseeable “reaction” force that does
not cut off the causal connection between the act and the harm. If the designer were deemed to be
a proximate cause of the snakes getting into the passenger compartment, the fact that the officer’s
injury was caused by the reaction of another passenger rather than a snakebite would not matter.

Answer to Question 24

(D) The owner cannot recover damages because his property was not harmed and because there
are no grounds for punitive damages. The prima facie case for negligence requires damage to
the plaintiff’s person or property. Damages are not presumed in negligence cases; there must be
actual harm or injury. In cases involving property damage, the measure of damages is the reason-
able cost of repair, or, if the property has been almost or completely destroyed, its fair market
value at the time of the injury. Punitive damages generally are not recoverable in negligence cases,
unless the defendant’s conduct was reckless, malicious, or willful and wanton. Here there is no
indication that the movers intended injury to the anvils; this is merely a case of negligence. Thus,
the owner must show damage. The anvil has not been damaged in any way, so there are no actual
damages available, and because nominal damages are not allowed for negligence, the owner
cannot recover any compensatory damages from the movers, making (A) and (C) wrong. Also,
there is no indication of willful and wanton, reckless, or malicious behavior on the part of the
movers, so the owner cannot recover punitive damages, making (B) and (C) wrong.

Answer to Question 25

(D) The plaintiff can prevail in a lawsuit against the defendant even though his fault was greater than
hers. The plaintiff will be able to establish a prima facie case of negligence against the defendant,
because her inattentive driving breached her duty of care to other drivers and was a direct cause
of the plaintiff’s damages. The defendant’s defense that the plaintiff’s contributory negligence
also caused the accident does not bar the plaintiff’s recovery; comparative negligence jurisdictions
allow recovery despite contributory negligence by the plaintiff, and pure comparative negligence
rules allow recovery no matter how great the plaintiff’s negligence is. Even if the defendant also
was injured (although not indicated by the facts), the plaintiff could still recover damages. While
the defendant could counterclaim against the plaintiff for the percentage of her damages that the
plaintiff was responsible for, the plaintiff could still have a net recovery—regardless of his greater
fault—if his damages are significantly greater than the defendant’s (e.g., if the plaintiff is 60% at
fault and has suffered $100,000 in damages, while the defendant is 40% at fault and has suffered
$10,000 in damages, the plaintiff would recover $34,000 in damages). (A) is wrong because the
plaintiff’s failure to stop, whether it is considered negligent or reckless, does not bar him from
recovering in most pure comparative negligence jurisdictions; it merely reduces his recovery. (B)
is wrong because the pure comparative negligence approach allows recovery no matter how great
plaintiff’s negligence is. If partial comparative negligence had been adopted instead, the plain-
tiff’s success would depend on a comparison of his fault and the defendant’s fault. (C) is wrong
because last clear chance is a mitigation of the “all or nothing” effect of traditional contributory
negligence; it permits plaintiff to recover despite his own contributory negligence. Because a
comparative negligence jurisdiction rejects the “all or nothing” approach, most comparative negli-
gence jurisdictions do not use the last clear chance doctrine.