TORTS WORKSHOP 17.

EXPLANATORY ANSWERS
Answer to Question 1

(A) The umpire could recover on an assault theory. Even though the boy did not hit the umpire,
his action still constitutes an assault because it can be shown that he intended to cause harmful
contact and actually created an apprehension of contact. Children are liable for their intentional
torts when they are capable of forming the requisite intent. For assault, the intent required is to
bring about the offensive or harmful contact; knowledge of its wrongfulness is not an element of
that intent. The fact that he swung the bat at the umpire strongly indicates that he believed his
bat would hit the umpire and that the boy’s purpose in doing so was to bring about this result.
Therefore, it can be assumed that the boy had the capacity to form an intent to hit and that he did
form that intent, which is a required element of the tort of assault. Thus, (C) and (D) are incorrect.
The umpire could not recover on a negligence theory because the facts do not indicate negligent
conduct by the boy. The act of swinging the bat was not negligent. It was an intentional act. There-
fore, (B) and (C) are incorrect.

Answer to Question 2

(D) The patient will recover at least nominal damages. The patient here need only show that the
extension of the operation was an intentional, unpermitted, offensive contact in order to recover
at least nominal damages in battery. The patient may recover in battery regardless of whether
she was harmed. Battery is a tort where no physical harm need be shown, and no actual damage
need be proven. (A) is incorrect because the patient here can show that the extension of the opera-
tion was an intentional, unpermitted, offensive contact. Therefore, the patient may recover in
battery regardless of whether or not she was harmed. Battery is a tort where no physical harm
need be shown, and no actual damage need be proven. Actual harm is an element of the prima
facie case of negligence, but is not required for most intentional torts. (B) is incorrect because the
patient may recover in battery regardless of whether she was harmed and whether the physician’s
conduct was incompetent (i.e., negligent). Battery is a tort where no physical harm need be shown,
and no actual damage need be proven. Also, no negligence or incompetence need be shown in
battery. The patient here need only show that the extension of the operation was an intentional,
unpermitted, offensive contact. (C) is incorrect because, in a negligence action, actual harm must
be shown. The plaintiff must establish that she suffered damage as a result of the defendant’s
conduct. Damages will not be presumed and nominal damages cannot be awarded in a negligence
action. Nominal damages are only appropriate in a suit based on an intentional tort where no
actual harm can be shown.

Answer to Question 3

(B) The woman has a cause of action for false imprisonment only. The woman has no cause of action
for assault, because there was no act by the man that created a reasonable apprehension in the
first person of immediate harmful or offensive contact. The man’s words, unaccompanied by any
act, constitute at most a threat of future contact. Such a threat is insufficient to create the requisite
apprehension of immediate harmful or offensive contact. Because there is no assault, (A) and (C)
are incorrect. The woman has a cause of action for false imprisonment because the man placed
a physical barrier across the entrance to the woman’s office, intending to confine the woman
therein. The man’s action caused the woman to be confined to the office. The fact that the woman
apparently was confined for only a short time is immaterial to the false imprisonment action, as is
the apparent absence of actual damages. Thus, (B) is correct and (A) and (D) are incorrect.

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 18. TORTS ANSWERS

Answer to Question 4

(D) If the student wins, it will be because the neighbor’s conduct was extreme and outrageous. Inten-
tional infliction of emotional distress requires proof that: (i) the conduct was extreme and outra-
geous; (ii) it was also intentional, or at least reckless; and (iii) severe emotional distress resulted.
If the threat is deemed to be extreme and outrageous, the student will prevail because the other
elements are present. (A) is incorrect because an apparent present ability to make good on a
threat is required for an action of assault, but it is not specifically required for an action for inten-
tional infliction of emotional distress, the tort at issue here. (B) is incorrect because the require-
ment of physical harm only applies in cases of negligent infliction of emotional distress. This is
a case of intentional infliction of emotional distress. (C) is incorrect because pecuniary injury is
not required in an action for intentional infliction of emotional distress. While severe emotional
distress must be shown, an action will lie even if no actual monetary harm was caused.

Answer to Question 5

(C) The rancher will probably win. A person who intentionally intrudes upon land in the possession
of another is guilty of the tort of trespass to land. The bus driver has clearly met all the elements
of this tort. However, the bus driver has the defense of private necessity, because it was necessary
to drive onto the rancher’s land to avoid the forest fire. Although private necessity is a defense to
trespass to lands, it does not relieve the bus driver of liability for damage done to the property.
Hence, (A) and (B) are incorrect. Note that the call of the question merely asks what the outcome
of the rancher’s claim against the driver would be, not whether the driver has committed a
trespass. (D) is not as good a choice as (C) because it focuses on the driver’s intent in committing
a trespass rather than on whether the land was damaged.

Answer to Question 6

(B) The plaintiff will win because the defendant committed a conversion. A conversion occurs when
the defendant intentionally causes serious interference with the chattel of the plaintiff. The intent
involved refers to the physical act that results in the conversion, not to the defendant’s desires
regarding the ultimate disposition of the property. Therefore, the first member was guilty of
conversion when she intentionally (i.e., volitionally) took the second’s board, which resulted in its
loss, even though the first member did not intend to lose it or even realize that she had taken the
property of another. (A) is not the best answer because complete loss of a chattel is too serious an
interference to be classified a mere trespass. (C) is wrong because the first member’s good faith
is irrelevant in a conversion action. (D) is wrong because the fact that the first member’s car was
stolen does not relieve her of liability.

Answer to Question 7

(C) If the jogger prevails, it will be based on failure to exercise ordinary care of someone with the
teenager’s vision problem. In a lawsuit based on negligence, the usual standard of care is ordinary
and reasonable care under the circumstances. The standard changes when the defendant has a
major physical disability such as blindness. In that situation, the standard becomes ordinary and
reasonable care for a person with that disability. Therefore, (C) is a more accurate answer than
(A). (B) is wrong because it states the standard to be applied to children, which would not be
applied to an 18-year-old car driver. (D) is a true statement. However, the statutory violation of
failure to obtain a license was not the cause of the accident.

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Answer to Question 8

(A) The appellate court should uphold the verdict because it is a determination by the jury that the
worker did not act as a reasonable person would have acted. In a negligence action, the defendant’s
conduct is measured against the reasonable person, an objective standard. The defendant must act
as would a person of average mental ability, and he is deemed to have knowledge of things known
by an average member of the community; individual shortcomings or ignorance of that particular
defendant are not considered. Here, the verdict of negligence was a determination by the jury that
a reasonable person should have known of the danger, regardless of the fact that the defendant
did not. Hence, the verdict should be upheld because there is no basis in the facts for overturning
it. (B) is not as good a choice as (A) because nothing suggests that the jury did not believe the
worker’s evidence. The worker admittedly knew that he was mixing ammonia and bleach. Given
that he was also injured by the fumes, his assertion that he was not aware of the danger was very
believable. (C) is incorrect because the appellate court will not overrule a determination of negli-
gence by the trier of fact unless no reasonable jury could have made that determination. Given
that the standard of care requires the exercise of knowledge and ability of the average person, a
reasonable jury could have found negligence here. (D) is incorrect because, as discussed above,
the worker’s lack of knowledge is not taken into account when determining the standard of care
for negligence.

Answer to Question 9

(C) The bicyclist will most likely recover for the pneumonia but not for the leg injury. The facts
indicate that the driver was not driving negligently when the accident occurred. Therefore, he
is not liable for the leg injury caused by the accident, and (A) and (B) are incorrect. However,
where the defendant’s actions have placed another person in peril or caused another’s injury, the
defendant has a duty to make reasonable efforts to rescue the imperiled person or render aid to
his victim. The driver’s neglect of the bicyclist after injuring him will make him liable for the
resulting pneumonia. Therefore, (B) and (D) are incorrect.

Answer to Question 10

(A) The court should deny both motions and submit the case to the jury. Through process of elimina-
tion, this has to be a negligence action. Clearly the pilot did not commit an intentional tort, and
the driver cannot sue the pilot, the plane’s owner, in strict liability. The jury could determine that
the pilot was negligent in selection of the landing site; hence, the court should deny the pilot’s
motion. The court should also deny the driver’s motion because this is not a strict liability action;
negligent conduct needs to be established. Hence, (B) is incorrect. (C) is incorrect because
even though the pilot was not negligent in discovering the defect, she could have been negligent
in selecting the landing site. (D) is incorrect because in an emergency, the pilot is held to the
standard of care of a reasonable person in an emergency. It is up to the jury to determine whether
she acted reasonably under the emergency circumstances.

Answer to Question 11

(B) The child who fell into the mineshaft is most likely to win. Under the attractive nuisance doctrine,
a child trespasser who is injured by a dangerous artificial condition need not have been attracted
onto the property by the condition. (A) is wrong because generally there is no obligation for a
landowner to warn trespassers, whether they are children or adults, of dangerous natural condi-
tions. (C) is wrong for the same reason. (D) is wrong because, as a licensee, the plaintiff need

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 20. TORTS ANSWERS

only be warned of dangerous natural conditions of which the landowner is in fact aware and
which are unknown to the licensee or unlikely to be discovered by her, and here the landowner
did not know of the hole.

Answer to Question 12

(C) If the friend does not prevail, it will be because he should have noticed the dangerous condition
himself. In jurisdictions applying the traditional rules for landowners and possessors of land, the
nature of the duty owed by an owner or occupier of land to those on the premises for dangerous
conditions on the land depends on the legal status of the plaintiff in regard to the property, i.e.,
trespasser, licensee, or invitee. A licensee is one who enters on the land with permission for his
own purpose or business and includes social guests. The owner or occupier owes a 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. The owner
or occupier does not have a duty to inspect for defects or to repair known defects. Here, the friend
had been invited for dinner, making him a licensee. The facts do not indicate whether the tenant
knew of the split board and neglected to alert the friend or simply was not aware of it, but the duty
to warn does not extend to dangerous conditions that the licensee should reasonably have discov-
ered. Hence, (C) presents the best basis for the friend not prevailing. (A) is incorrect because that
fact would not make a difference to the tenant’s liability. The tenant remains liable to the friend
for dangerous conditions on the premises as the occupier of the land, regardless of the landlord’s
obligation to inspect and repair. (B) is incorrect because the friend still qualifies as a licensee even
though he arrived sooner than his invitation specified. It is true that a person may lose invitee
status and become a licensee by being on the premises at a time outside the scope of his invita-
tion. However, there is no similar principle applicable here. The fact that the friend arrived an
hour early does not make him a trespasser rather than a licensee. Hence, the fact in (B) would not
affect the tenant’s liability. (D) is incorrect because it also is irrelevant. Even if the tenant had no
legal right to occupy the land, she still would be the possessor of the land as to the friend, and she
owed the friend the duties owed to a licensee.

Answer to Question 13

(C) The court should grant the defendant’s motion because the plaintiff has not offered sufficient
evidence of negligence on the defendant’s part to go to the jury. The standard of care in a negli-
gence case may be established by proving that a statute imposing a specific duty applies instead
of the more general common law duty of care. However, violation of the statute may be excused
where compliance would cause more danger than violation or where compliance would be beyond
the defendant’s control. Here, the statute regulating campfires is applicable because (i) the plain-
tiff, a fellow camper, is in the class intended to be protected by the statute, (ii) the statute was
designed to prevent the escape of a campfire, which is what occurred here, and (iii) the statute
clearly specifies what is required. However, even though the statute would apply to the defendant’s
conduct and the defendant violated the statute, the violation will be excused here because he was
fleeing for his life from a bear and had to take refuge in his car. Hence, the defendant will not be
held to the statutory standard of care here. Because the plaintiff has offered no other evidence that
the defendant was negligent, the defendant’s motion should be granted. (A) is incorrect because,
as discussed above, even though the statute was intended to prevent the harm that occurred, the
defendant’s violation of the statute will be excused. (B) is incorrect because the plaintiff cannot
rely on an inference of negligence here to establish breach of duty. Res ipsa loquitur permits the
trier of fact to infer breach of duty where the facts strongly indicate that the plaintiff’s injuries
resulted from the defendant’s negligence, but here the undisputed facts as to how the brush fire

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was caused are inconsistent with a finding of negligence. (D) is incorrect because there is neither
a reasonable inference of negligence nor evidence of negligence, given that the violation of the
statute will be excused here. Hence, the case should not be submitted to the jury because the
plaintiff has not established a prima facie case.

Answer to Question 14

(C) The mother cannot recover. A duty to avoid negligent infliction of emotional distress may be
breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. For
a bystander who is outside the zone of danger from the risk of physical injury but who suffers
emotional distress from seeing the defendant negligently injure another, most states allow
recovery if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the
plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or
perceived the event. Here, the mother was some distance away and not in the zone of danger,
so her distress was not caused by any perceived danger to her. Nor can she recover under the
bystander rules. While she is related to her son, who was injured in part by the ride operator’s
negligence, she was not present at the scene of the injury and did not personally observe or
perceive the event. Rather, her distress was due primarily to hearing someone say that a young
boy had been killed and not being able to get close enough to the ride to see where her son was.
Hence, she cannot recover damages for negligent infliction of emotional distress. (A) is incorrect.
The mother’s distress was not caused by the injuries her son suffered, but rather at her fear that
he was the one killed. While she may be able to recover damages for his injuries, those would be
distinct from any damages for her emotional distress. (B) is incorrect. As discussed above, the
plaintiff’s close relationship with the injured person is only one of the requirements for a plaintiff
outside the zone of danger to recover emotional distress damages. Because the mother was not
present at the scene and did not observe the event, she cannot recover. (D) is incorrect. While
her son was not killed, he was injured by the boy striking him while falling. Had the mother
been present and observed the boy falling and hitting her son, she could recover damages for her
emotional distress. Conversely, even if the boy who was killed were her son, her damages would
be compensable instead through a wrongful death action.

Answer to Question 15

(C) The volunteers are likely to prevail. The elements of the prima facie case for negligence are (i)
a duty owed to the plaintiff, (ii) breach of that duty, (iii) actual and proximate cause, and (iv)
damages. Here, the volunteers each owed a duty of care to anyone consuming the food they
prepared, including the guest. The facts indicate that at least one of the volunteers breached that
duty by improperly preparing or cooking the ground beef. That breach of duty caused the guest
to become seriously ill. However, he cannot establish which of the volunteers breached the duty
of care and was the actual cause of his injury. Absent additional evidence, the guest will not
prevail. (A) is incorrect. Res ipsa loquitur does not apply because more than one person supplied
the casserole dish. The res ipsa loquitur doctrine enables a plaintiff to establish breach of duty
just from the fact that an injury occurred that would not ordinarily occur unless someone was
negligent. However, the plaintiff must establish evidence connecting a particular defendant with
the negligence to support a finding of liability against that defendant. When more than one person
was in control of the instrumentality that caused the injury, such as here, res ipsa loquitur gener-
ally may not be used. The doctrine sometimes has been applied to multiple parties involved in a
joint venture, but that does not apply in this case. Each person volunteered independently to make
the casserole dish, and each of them worked individually with their own recipes in their own
homes, and another person combined the three batches into one casserole dish. (B) is incorrect.

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 22. TORTS ANSWERS

The alternative liability approach of Summers v. Tice applies when two or more persons have
been negligent but it cannot be determined which one caused the plaintiff’s injury. The court will
shift the burden of proof to each of the negligent defendants to show that his negligence was not
the actual cause of the injury. Here, however, there is no evidence that all of the volunteers were
negligent; most likely, just one of them was. Hence, the volunteers will not be required to prove
that they did not cause the guest’s injury. (D) is incorrect. Regardless of the fact that they were
just donating their time and food, each of the volunteers owed a duty of care to anyone consuming
the food they prepared, as stated above. If the guest could prove that a particular volunteer under-
cooked the ground beef in her casserole, he could recover damages for his illness that was caused
by the undercooked beef.

Answer to Question 16

(C) Proximate cause is not established. To establish proximate cause in indirect cause cases, where an
intervening force combines with the defendant’s conduct to cause the plaintiff’s injury, the plain-
tiff must show that the defendant’s negligence caused a foreseeable harm or caused a foreseeable
reaction from a foreseeable intervening force. Intervening forces that produce a harm outside of
the scope of what would normally be anticipated from the defendant’s negligence are generally
deemed unforeseeable and superseding. Such a superseding event will break the chain of causa-
tion and relieve the defendant of liability. Here, it is ultimately a question for the jury whether the
landlord’s failure to fix the water heater was a proximate cause of the nephew’s injury. However,
the jury could very well find that the landlord’s failure to do so, even if negligent, is not a proxi-
mate cause of the nephew’s burn injuries because the conduct of the nephew and the tenant are
superseding forces. Given the invalidity of the other choices, lack of proximate cause is the most
likely reason for the landlord to prevail. (A) is incorrect. Not only the tenant but also the landlord
owes a duty to the tenant’s nephew. The landlord’s duty to maintain hot water in the tenant’s
apartment extends to guests of the tenant as well. (B) is incorrect. The tenant’s conduct was
not the only actual cause of the nephew’s injuries under the “but for” test for actual cause. The
landlord’s failure to repair the water heater promptly was also an actual cause, because but for his
failure to do so, the tenant would not have been carrying a pot of hot water to the bathroom. (D)
is incorrect. Under the rule that a tortfeasor takes his victim as he finds him, it is irrelevant that
the extent or severity of the plaintiff’s injuries was unforeseeable. If the landlord were liable to the
nephew, he would be liable for all of his injuries even though some were not foreseeable.

Answer to Question 17

(D) If the plaintiff recovers only $25,000, it will be because the jurisdiction has abolished joint and
several liability. Under joint and several liability, when two or more tortious acts combine to
proximately cause an indivisible injury to a plaintiff, each tortfeasor is liable to the plaintiff for the
entire damage incurred. Hence, the plaintiff could recover $50,000 from the defendant if joint and
several liability applied (her total damages reduced by the amount of her own fault that contrib-
uted to her injury). The facts do not state what percent of fault was assigned to the defendant,
but given that the other choices are incorrect, the defendant’s fault must have been determined
to be 25%, so that $25,000 would be the plaintiff’s recovery in the absence of joint and several
liability. (A) is incorrect regardless of whether joint and several liability applies. If the defendant’s
fault were less serious than that of the other tortfeasor, he would be liable to the plaintiff for less
than $25,000 in the absence of joint and several liability. If joint and several liability did apply,
he would be liable to the plaintiff for $50,000—the full amount of her damages. (B) is incorrect
because the fact that the plaintiff’s fault equals the combined fault of the other two tortfeasors is
relevant only in a partial comparative negligence jurisdiction. It is irrelevant in a pure comparative

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 TORTS WORKSHOP 23.

negligence jurisdiction. (C) is incorrect because the rule of contribution, regardless of whether it is
based on a pro rata approach or a proportional fault approach, does not affect how much the plain-
tiff receives from a defendant. Rather, it enables a defendant who has paid more than his share of
damages to the plaintiff under joint and several liability to seek recovery against any other joint
tortfeasor for the excess paid.

Answer to Question 18

(C) The pedestrian can collect $40,000 from the driver. In a pure comparative negligence jurisdic-
tion, the plaintiff can recover even if he was over 50% at fault. Thus, (A) is wrong. The recovery
will be limited to the percentage of damage attributed to the defendant(s), in this case 40%. The
jurisdiction retains the rule on joint and several liability. Therefore, each defendant is responsible
for the combined liability of all defendants. (C) is therefore correct and (B) is wrong. (D) is wrong
because, in a comparative negligence jurisdiction, the plaintiff’s recovery is reduced due to his
negligence.

Answer to Question 19

(B) The most helpful fact is that no one had reported this type of problem previously. The mother is
alleging that the manufacturer’s negligence led to the supplying of a defective product. To estab-
lish this, the plaintiff must show that those designing the product knew or should have known
of enough facts to put a reasonable manufacturer on notice about the dangers of marketing
the product as designed. Negligent design is not shown, however, if the danger of the product
becomes apparent only after the product reaches the public. Hence, the absence of any previous
complaints about this problem would be most helpful to the manufacturer. (C) is less helpful than
(B). Although compliance with government safety standards, such as labeling, is evidence that
the product is not defective, it is not conclusive evidence, and federal labeling requirements do
not preempt state products liability laws on defective warnings. (A) will not support the manufac-
turer’s defense. The answer choice suggests that the mother was contributorily negligent; however,
the contributory negligence of a parent is not imputed to the child. (D) does not help the manufac-
turer. An intermediary’s negligent failure to notice a defect does not relieve the liability of a
manufacturer whose original negligence was the cause of the defect.

Answer to Question 20

(B) The most likely result is that the friend will prevail on grounds of inadequate warnings. Where
a product presents an unreasonable risk of injury to users and bystanders, the fact that there is
no sufficient warning of the danger may be a dangerous defect that will invoke strict products
liability. The facts establish that the fishing tackle company knew that purchasers of its fishing
line commonly used that line to support heavy hanging objects, and that the line would not
support the weight rating in that type of use. Thus, the fishing tackle company’s failure to provide
a warning may be a defect that will permit the friend to recover in strict liability. Given that the
other choices are clearly incorrect, (B) is the best option. (A) is incorrect because the fact that the
line would not support a hanging weight of less than 10 pounds is not alone sufficient to constitute
a dangerous defect; it is the fact that the fishing tackle company knew of the danger represented
and failed to provide a warning to such users that may make the injury to the friend actionable.
(C) is incorrect because the foreseeable misuse of a dangerously defective product by a purchaser
or user does not relieve the manufacturer of the product of liability for injuries that are caused by
the defect. Here, the known use of fishing line to support heavy hanging weights is what prompts
the need for a warning, the absence of which may make the product dangerously defective. (D)

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is incorrect because, as indicated above, the presence or absence of a dangerous defect, and the
responsibility for injuries caused by the defect, is not controlled by whether a product meets
standards of performance measured solely by the use intended by the manufacturer. The fact that
the fishing line performed adequately under industry standards when used for fishing does not
mean that it cannot be dangerously defective when used for another purpose, when such use is
known or reasonably should have been known by the manufacturer.

Answer to Question 21

(B) The driver will be awarded damages for injuries from the turn signal rod. Even though the defec-
tive turn signal rod was not the proximate cause of the accident, the driver can recover from the
manufacturer for the additional injuries suffered due to the defective turn signal rod, because
those are identifiable as caused by that defect. The manufacturer is strictly liable under a products
liability theory for injuries caused by that defect, even though a subcontractor manufactured the
rod. Thus, (B) is the correct answer. (D) can be eliminated because it deals with a negligence
theory, and the suit is being filed under a strict liability theory. Because liability attached only for
the damages actually caused by the defective turn signal, (A) is incorrect. (C) is incorrect. In a
jurisdiction that does not apply its comparative negligence rules to strict liability actions, ordinary
contributory negligence is not a defense. The driver’s falling asleep at the wheel was negligent and
a cause of the accident, but his punctured lung was also caused by the defective turn signal.

Answer to Question 22

(D) The pedestrian will lose in this suit. The defendant is strictly liable for engaging in certain
activities when the dangerous propensity of that activity injures the plaintiff. Although hauling
dynamite is an unusually dangerous activity, it was not the dynamite’s dangerous propensities
that caused the accident. Instead, it was a defective latch in the truck. Thus, (A) is incorrect. (B)
and (C) can be eliminated because they deal with negligence issues and the pedestrian is suing
under a strict liability theory. (D) is the best answer. Note that if the dynamite had exploded, after
falling out due to the defective latch, there would have been liability under a strict liability theory.

Answer to Question 23

(C) The newspaper’s best defense is that the publication was not made with actual malice. A public
figure suing for damages in a defamation action must prove actual malice. Mere hostility or
dislike of the plaintiff does not constitute actual malice. To establish actual malice, a plaintiff
must show “that the utterance was false and that it was made with knowledge of its falsity or
with reckless disregard of whether it was false or true.” [New York Times v. Sullivan (1964)]
Reckless disregard is not measured by whether a reasonable person would have investigated
before publishing. There must be sufficient evidence to permit the conclusion that the defendant
in fact entertained serious doubts as to the truth of the communication when it was published.
(A) is incorrect because negligence is not the standard which will apply in this case to determine
the defendant’s fault. As the anchor of a popular news show, the anchorman is a public figure,
and a public figure suing for damages in a defamation action must prove actual malice. (B) is
incorrect because the fact that the anchorman was restored to his position quickly is relevant to
the issue of damages, but it does not help the newspaper on the issue of liability. (D) is incorrect.
The Speech and Debate Clause provides immunity from defamation, but only for communica-
tions in one of the houses of Congress. The chief counsel’s statement outside of Congress would
not be covered.

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Answer to Question 24

(B) The comedian will prevail on invasion of privacy grounds. (B) is a correct statement of the law
defining the invasion of the comedian’s privacy by appropriating his likeness for a commercial
purpose (i.e., using the comedian’s picture to promote the sale of a commercial product without
the comedian’s consent). (A) is incorrect because the comedian lacks a prima facie case for
defamation (there was no defamatory statement causing damage to the comedian’s reputation)
and, in any case, what the manufacturer printed was true. (C) is relevant to defamation, but is
incorrect here, because accuracy is not a defense to privacy torts. (D) is incorrect because consent
to commercial appropriation must be specific; it may not be implied from the comedian’s state-
ments on the television program.

Answer to Question 25

(B) The court will rule for the breeder. A private nuisance is a substantial, unreasonable interference
with another’s use or enjoyment of his own property; hence, (B) is correct because it states an
element that the breeder must prove. (A) is incorrect because the fact that the plaintiff owned the
property first does not establish the nuisance case. (C) is also incorrect. The fact that the defen-
dant is using his property for legal purposes is not a defense to a nuisance action. (D) is incorrect,
because a decline in the property’s value is not an element of the prima facie case of nuisance.

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