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TORTS QUESTIONS

625
1. The manufacturer made a product known as
Delphi's Follicle, which was sold over the
counter for the treatment of dandruff and dry
scalp conditions. A doctor purchased a bottle of
Delphi's Follicle at a drugstore. A statement on
the label read, "This product will not harm nor-
mal scalp or hair." The doctor used the product
as directed. Because of a rare scalp condition
making him allergic to one of the ingredients,
the product irritated his scalp, causing him
much pain and discomfort. In an action for neg-
ligence by the doctor against the manufacturer,
which of the following additional facts or infer-
ences, if it was the only one true, would be
most effective in the manufacturer's defense?
(A) The doctor did not read the statement on
the label.
(B) The reasonable person in the manufactur-
er's position would not have foreseen that
the product would injure persons with the
d'octor's allergy.
(C) The product was manufactured for the
manufacturer by another company.
(D) The manufacturer was unaware that an
allergy existed like that suffered by the
doctor.
2. The defendant lived in a neighborhood in which
the incidence of violent crime had been increas-
ing. The plaintiff and the defendant were having
tea together in the defendant's kitchen when
there was a knock at the door of the defendant's
home. Although the door was equipped with a
peephole that would have enabled the defendant
to see who was outside before opening, the
defendant opened the door without looking. As
soon as the door was opened, an armed robber
entered with a gun. The robber struck the plain-
tiff several times with the barrel of his pistol
before robbing her of her money and leaving.
The plaintiff subsequently asserted a negligence
claim against the defendant for injuries resulting
from the attack, alleging that it was negligent
for the defendant to open the door without
looking to see who was there.
Which of the following additional facts, if it
was the only one true, would be most helpful to
the plaintiff's claim against the defendant?
(A) The defendant was aware of the high inci-
dence of crime in the neighborhood.
(B) The plaintiff was aware of the high inci-
dence of crime in the neighborhood.
(C) The defendant had invited the plaintiff for
tea because she hoped to sell the plaintiff
her used living room furniture.
(D) One of the defendant's neighbors had been
robbed and attacked by the robber in a
similar manner the previous day.
3. A farmer had been living on the family farm
most of his life. Because he was ready to retire,
he advertised his farm for sale. A developer had
been secretly advised by a friend in the state
highway department that a major highway
would soon be built adjacent to the farmer's
land. Knowing that this would increase the
value of the property, the developer contacted
the farmer and offered to purchase the farm.
The developer said that she would be willing to
pay the fair market value as determined by any
licensed real estate appraiser selected by the
farmer. The farmer hired a licensed real estate
appraiser who determined the fair market value
to be $400,000. The developer purchased the
land, paying that price.
Three weeks after the closing of title, the state
announced plans to build a highway adjacent to
the land. This announcement increased the
value of the land to $4,000,000. If the farmer
institutes an action for misrepresentation against
the developer, the court should find for
626 FINZ MULTISTATE METHOD
(A) the developer, if the farmer knew her to be
a real estate investor.
(B) the developer, because she allowed the
farmer's appraiser to determine the fair
market value of the land.
(C) the farmer, because the developer's failure
to disclose the coming of the highway
was a breach of a fiduciary obligation.
(D) the farmer, if the developer had an obliga-
tion to disclose that the state would be
building a highway adjacent to the land.
4. A woman was injured when a robber shot her
with a pistol manufactured by the gun maker.
She asserted a claim against the gun maker,
alleging that the pistol with which she had been
shot was meant to be sold for a price under
$50. Which of the following arguments is most
likely to lead to a judgment for the woman?
(A) The gun maker is vicariously liable for
battery, since it was foreseeable that a
purchaser of the pistol would shoot
another person with it.
(B) The gun maker breached an implied war-
ranty that the gun was merchantable,
since a pistol that is meant to be sold for
under $50 is unfit for ordinary use.
(C) The gun maker is liable for negligence,
since the criminal law is designed to pro-
tect persons like the woman from becom-
ing the victims of robbers.
(D) The gun maker is liable for negligence,
since the low selling price of the pistol
made it foreseeable that it would be used
in connection with a crime.
5. A man was already intoxicated when he entered
the bartender's tavern. At first, the bartender
refused to serve him any more alcohol. The
man insisted, however, and at his insistence, the
bartender served him three more drinks. When
the man left the bar, he was unable to start his
car. He asked a dentist, who was driving by, to
assist him. The dentist, who realized that the
man was drunk, determined that the man's bat-
tery was weak and started the man's car by
connecting a cable to her own battery. Later,
while driving, the man struck a pedestrian who
was walking across the street.
The pedestrian asserted a claim for his personal
injuries against the dentist. Which one of the
following facts or inferences, if it was the only
one true, would provide the dentist with the
most effective defense?
(A) The state had a statute making a barkeeper
liable for damage done by a person who
purchased alcohol from the barkeeper
after already being intoxicated.
(B) The dentist was in the business of render-
ing road service to motorists having
trouble with their cars.
(C) The man drove 200 miles before striking
the pedestrian.
(D) The man would not have struck the pedes-
trian if he had not been intoxicated.
6. The driver was driving down Main Street at an
unreasonably fast rate of speed when, as a
result, he collided with a hunter's car that was
standing unattended against the curb. The
impact caused a loaded rifle that the hunter had
left in the back seat of the car to fire. The bullet
went through the car window and traveled four
blocks before striking a painter, who was leav-
ing a paint factory after work. Although the
painter had lost the sight in his left eye in an
accident that occurred when he was a child, he
was employed by the paint factory as a color
coordinator. As a result of his being struck by
the bullet from the hunter's rifle, the painter
lost the sight in his right eye. This rendered him
totally blind, causing him to lose his job. The
painter subsequently asserted a negligence claim
against the driver, alleging permanent loss of
earning capacity in addition to other items of
damage.
Which of the following is the driver's most
effective argument in defense against the paint-
er's claim for permanent loss of earning capac-
ity?
(A) The painter was a super-sensitive plaintiff,
since he was already blind in one eye.
TORTS QUESTIONS 627
(B) The hunter acted unreasonably by leaving
a loaded rifle in the back seat of his car.
(C) The painter was outside the foreseeable
zone of danger.
(D) The reasonable person would not have
expected that the driver's conduct would
cause any person to be rendered blind.
7. A burglar broke into the grocer's grocery store
in the middle of the night. After stealing all the
money that was in the cash register, she blew
open the door of the safe with nitroglycerin and
stole its contents as well. Then, as she was
leaving, she stole a six-pack of Three Star Beer.
Because of poor quality control at the Three
Star brewery where it was made, the beer con-
tained a toxic ingredient. Later that night, the
burglar drank three cans of the beer and was
made seriously ill by the toxic ingredient that it
contained. In an action by the burglar against
Three Star, the court will most likely find for
(A) the burglar, if her injury was proximately
caused by the negligence of Three Star.
(B) the burglar, since Three Star breached an
express warranty.
(C) Three Star, since the burglar does not
come into court with "clean hands."
(D) Three Star, if the burglar's theft of the
beer is regarded as unforeseeable.
8. A movie studio was filming part of a motion
picture at a large residential apartment building
with the permission of the building owner. To
avoid interference by curious onlookers, the
movie studio's security agents set up a com-
mand post in the lobby of the building. No per-
sons were allowed to enter the building without
identifying themselves and explaining their rea-
sons for being there. A fisherman, who lived in
an apartment in the building, was returning
from a fishing trip late one night. Unaware of
the movie studio's activities, he was stopped by
the movie studio employees as he attempted to
enter. Because he was not carrying identifica-
tion, the fisherman was unable to establish his
identity. For this reason, the employees refused
to allow him to enter. After trying unsuccess-
fully to convince them that he lived there, the
fisherman stayed with his sister, who lived a
block away. The following morning, he con-
tacted the building owner, who spoke to the
movie studio officials and arranged to have
them allow the fisherman to enter.
If the fisherman asserts a claim against the
movie studio for false imprisonment, which of
the following would be the movie studio's most
effective argument in defense?
(A) The movie studio employees did not know
that the fisherman was entitled to enter
the building.
(B) The conduct of the movie studio employ-
ees was not unreasonable.
(C) The fisherman was not imprisoned.
(D) The fisherman sustained no damage as a
result of the conduct of the movie studio
employees.
9. A handyman, who owned an appliance repair
shop, was at a cocktail party when he saw one
of his competitors. Approaching the competitor,
the handyman said, "I'm glad to run into you. I
was hoping that we could discuss the possibility
of going into partnership instead of competing
with each other." The competitor responded, "I
wouldn't go into business with you because
you're the most incompetent person I've ever
known." A customer of the handyman's over-
heard the conversation. As a result, the follow-
ing day the customer cancelled a contract that
he had with the handyman.
If the handyman asserts a claim against the
competitor for defamation, the handyman will
be successful if
(A) the competitor knew or should have
known that the statement was defamatory
when he made it.
(B) the competitor knew or should have known
that the statement was false when he
made it.
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(C) the competitor knew or should have
known that the statement would be
overheard when he made it.
(D) the competitor knew or should have
known that harm would result from the
statement.
10. A farmer owned 500 acres of land on which
she grew wheat. By a valid written contract,
she agreed to deliver all her wheat to a bread
company to be used by that company in the
production of bread for sale to the general
public. While harvesting the crop, she realized
that a blade on her harvesting machine was
broken and that fine slivers of metal were
becoming mixed with the wheat. She said
nothing about this when she delivered the
wheat to the bread company since she knew
that the bread company ordinarily cleaned its
wheat before using it. The harvesting machine
had been manufactured and sold by a tractor
company.
The bread company used the wheat that it pur-
chased from the fanner to manufacture a loaf
of bread that it sold to a deli owner who oper-
ated a sandwich shop. The deli owner used the
bread to make a sandwich. Because the bread
contained slivers of the blade from the farm-
er's harvesting machine, a bike messenger
lacerated the lining of his throat when he
swallowed a bite of the sandwich.
Which of the following additional facts or
inferences, if it was the only one true, would
be most helpful to the farmer in defense
against an action brought by the bike messen-
ger on a theory of strict liability in tort?
(A) If the bread company acted reasonably,
the slivers of metal would have been
removed from the wheat before it was
baked into bread.
(B) The sandwich that contained the slivers
of metal had been purchased by one of
the bike messenger's coworkers, who
gave it to the bike messenger after
changing his mind about eating it.
(C) The bread company made substantial
changes to the wheat.
(D) The blade on the farmer's harvesting
machine was defective when she pur-
chased it from the tractor company.
11. The plaintiff and the defendant were drinking
at the same bar when the plaintiff began
insulting the defendant by calling him names
that were ethnically offensive. When they
started to argue with each other, the bartender
asked them both to leave. The plaintiff got into
his car and drove away. Angry, the defendant
began chasing him in his own car. When he
caught up with the plaintiff, the defendant
began passing the plaintiff's car on the left. As
he did so, he swerved his car toward the
plaintiff's for the purpose of frightening the
plaintiff. The plaintiff did not know that the
car swerving toward him was the defendant's,
but he became frightened that it would hit him
and steered away from it, striking a fire
hydrant and sustaining injury.
If the plaintiff institutes an action against the
defendant, a court should hold the defendant
liable for
(A) battery only.
(B) assault only.
(C) both battery and assault.
(D) neither battery nor assault.
12. The buyer was interested in purchasing the
seller's house. Because the buyer knew that
some of the houses in the area were infested
with termites, he asked the seller whether there
were any termites in his house. The seller said
that there were none, believing this statement
to be true. The buyer purchased the house
from the seller and moved into it. Three
months later, the buyer discovered that the
framework of the house had been damaged by
termites, and that the termites had been dam-
aging the framework for several years. He sub-
sequently asserted a claim against the seller on
a theory of negligent misrepresentation.
TORTS QUESTIONS 629
Which of the following is the seller's most
effective argument in defense against the buy-
er's claim?
(A) The seller did not know that there were
termites in the house.
(B) The seller had no duty to tell the buyer
whether there were termites in the
house.
(C) The seller's statement that there were no
termites in the house was an expression
of opinion.
(D) The seller's belief that there were no ter-
mites in the house was reasonable.
13. The plaintiff purchased a box labeled "Generic
Breakfast Cereal" from Riteway Supermarket.
While he was eating it, he broke a tooth on a
stone that the product contained. The product
sold by Riteway and labeled "Generic Break-
fast Cereal" is furnished by three different
companies: Acme, Birdco, and Cullen. Each
sells an approximately equal quantity to Rite-
way. In addition, all package their product in
identical wrappers, so that it is impossible to
tell which of them furnished any given box of
breakfast cereal. Although the companies com-
pete with each other, at Riteway's request,
they worked together to design the product
wrapper.
If the plaintiff is successful in an action for
damages against Riteway, it will probably be
because
(A) Riteway, Acme, Birdco, and Cullen were
involved in a concerted action in the
manufacture and marketing of the prod-
uct.
(B) Riteway, Acme, Birdco, and Cullen estab-
lished standards on an industry-wide
basis, which standards made identifica-
tion of the product's manufacturer
impossible.
(C) the negligence of either Acme, Birdco, or
Cullen resulted in harm to the plaintiff
under circumstances such that it was
impossible to tell which of them caused
the harm, and Riteway is vicariously
liable for that negligence.
(D) either Acme, Birdco, or Cullen manufac-
tured a defective product, and Riteway
sold that product while it was in a
defective condition.
14. A 13-year-old girl was a member of Survival
Scouts, a national young people's organization.
As part of a Survival Scout project, she
planned to spend an entire weekend camping
alone in the woods. A kidnapper, who knew
about the project, phoned the girl's mother the
day after the girl left home. The kidnapper
said, "We have your daughter. We've already
beaten her up once, just to hear her scream.
Next time, we might kill her." The kidnapper
instructed the girl's mother to deliver a cash
ransom to a specified location within one hour.
Since there was no way to locate the girl's
campsite in the woods, the girl's mother could
not find out whether the kidnapper was telling
the truth. Horrified that her daughter might be
beaten and injured or killed, she delivered the
ransom as instructed. She remained in a hys-
terical state until the girl returned from her
camping trip and the girl's mother realized
that the ransom demand had been a hoax. The
girl's mother, who already suffered from a
heart ailment, had a heart attack the day after
the girl's return.
If the girl's mother asserts a claim against the
kidnapper for assault, the court should find for
(A) the girl's mother, because the kidnapper
was aware that his conduct would
frighten her.
(B) the girl's mother, because the court will
transfer the kidnapper's intent.
(C) the kidnapper, because the girl's mother
did not perceive injury being inflicted
upon the girl.
(D) the kidnapper, because the girl's mother
had no reason to expect to be touched
by the kidnapper.
15. The actor was a retired motion picture actor
whose career had consisted primarily of a
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series of small roles in films about the jungle.
The actor owned a leopard, which the actor
had trained and which had appeared with him
in motion pictures. The leopard had always
been tame and gentle, even when young.
When the actor retired, the leopard was old,
almost blind, somewhat slow-moving, and the
size of a large dog. The actor brought the ani-
mal to live with him, keeping it in the fenced
yard alongside his house. A 13-year-old girl
delivered newspapers to the actor. One day,
she came to the actor's home to collect for the
past week's deliveries. Since she knew the
leopard, the girl opened the gate and called the
animal so that she could pet him. The leopard
bounded toward the place from which the
sound had come, but because he was almost
blind, he bumped into the girl. The girl fell to
the ground, fracturing her ankle.
If the girl asserts a claim against the actor on a
theory of strict liability, the court should find
for
(A) the actor, because the injury did not
result from a trait that made it danger-
ous to keep a leopard.
(B) the actor, because the leopard was not a
wild animal.
(C) the girl, because it was unreasonable for
the actor to keep the leopard in his yard.
(D) the girl, because the actor should have
anticipated that a child would attempt to
pet the leopard.
le the plaintiff was visiting her daughter,
the two of them decided to go swimming at a
nearby public pool. Since she had not brought
a bathing suit along on her visit, the plaintiff
went to a department store to purchase one.
While looking at the suits on the bargain
counter, she found one that had been manufac-
tured by the defendant. The package that con-
tained it bore a label that read, "Disposable
Bathing Suit. This garment is made completely
from recycled paper. Although it is strong
enough to be worn several times and is even
washable, it's inexpensive enough to be
thrown away after one use. Buy several, and
take them with you on trips to the beach." The
plaintiff bought the bathing suit and wore it at
the public swimming pool. After swimming
for a few minutes, she climbed up to the div-
ing board. She was preparing to dive into the
pool when the wet paper bathing suit suddenly
dissolved and fell from her in shreds, leaving
her completely naked. Horrified, the plaintiff
climbed down from the diving board as
quickly as she could, calling to her daughter,
who ran over and wrapped her in a towel.
If the plaintiff asserts a claim against the
defendant for damages resulting from her
embarrassment, the defendant's best argument
in defense is that
(A) the defendant made no representations to
the plaintiff.
(B) the plaintiff sustained no physical injury
or symptoms.
(C) the plaintiff purchased the suit from the
department store.
(D) the defendant acted reasonably in manu-
facturing and labeling the bathing suit.
17. A mother needed butter for the cookies that
she was baking, so she asked her seven-year-
old son to go to the store on Main Street.
Because traffic on Main Street was sometimes
heavy, the son was not usually permitted to
ride his bicycle on the roadway there. The
mother needed the butter right away, however,
so she told him that he could ride in the road-
way if he was sure to stay on the left side so
that he could see cars coming toward him. A
driver was driving his car on Main Street
when he was momentarily blinded by the sun.
He did not see the son, who was riding toward
him in the roadway, and struck him, causing
the son to sustain serious injuries. The son
subsequently asserted a claim for negligence
against the driver. The driver raised a defense
based on contributory negligence. In a juris-
diction that applies the all-or-nothing rule of
contributory negligence, the driver's defense
will succeed only if
(A) the son acted unreasonably.
TORTS QUESTIONS 631
(B) the mother acted unreasonably.
(C) either the mother or the son acted unrea-
sonably.
(D) both the mother and the son acted unrea-
sonably.
18. The company manufactured a device for train-
ing dogs. The device consisted of a leather
strap fastened to a collar made of metal links.
The links were connected to each other in
such a way that a pull on the leather strap
would cause the collar to tighten painfully
around the neck of the dog wearing it. In this
way, the dog being trained could be disci-
plined immediately upon performing improp-
erly. A professional dog trainer was working
with a dog in her unfenced front yard and was
using a brand new device. A walker was walk-
ing past the yard when the dog began to snarl
and lunge at him. When the trainer yanked on
the leather strap of the device, it suddenly
broke, freeing the dog. The dog sprang for-
ward, biting the walker.
If the walker asserts a claim against the com-
pany alleging that the device used by the
trainer was defective, the court should find for
(A) the company, because the walker was not
a purchaser or consumer of the product.
(B) the company, if the device had been sub-
mitted to all reasonable tests and inspec-
tions before being marketed.
(C) the walker, if the dog was a dog of aver-
age size and strength.
(D) the walker, because it was foreseeable
that a leather lead would eventually
weaken and break when used as the
device was meant to be used.
19. On a boy's first birthday, his aunt bought him
a rag doll as a gift. The toy was made of plush
material, with buttons sewn on for eyes. While
playing with the toy, the boy pulled one of the
buttons off, put it in his mouth, and choked to
death on it. The boy's father commenced an
action against the aunt under the state's
wrongful death statute.
If the father is successful in his action against
the aunt, it will probably be because
(A) the aunt was negligent in giving the rag
doll to the boy.
(B) the rag doll was unfit for ordinary use.
(C) the rag doll was defective when the aunt
gave it to the boy.
(D) the rag doll was unreasonably dangerous
when the aunt gave it to the boy.
20. Because the plaintiff had a headache, he took
two headache tablets from a bottle that had
been purchased by his wife at the grocery
store. The tablets had been manufactured by
the company, which sold them to the grocery
store in sealed bottles for resale. Because of a
toxic ingredient that the tablets contained, the
plaintiff became ill as a result of taking them.
If the plaintiff asserts a claim based on negli-
gence against the grocery store for his dam-
ages, the court should find for
(A) the plaintiff, because the company's neg-
ligence is imputed to the grocery store.
(B) the plaintiff, because a retailer has an
absolute duty to provide safe products.
(C) the grocery store, because the bottle con-
taining the tablets was sealed when the
grocery store received it.
(D) the grocery store, because the tablets had
been purchased by the plaintiff's wife.
21. The driver was looking for an address as he
drove down the street and was not watching
the road in front of him. As a result, he did
not see the pedestrian crossing the street in
front of him and struck her with his car,
knocking her down. The driver immediately
got out of her car to help the pedestrian. When
he saw that she was unconscious, he became
afraid to move her, and he left her in the road-
way while he ran to a nearby phone. While the
driver was gone, a taxi driver drove down the
same street. Because he was intoxicated by
the drug PCP, the taxi driver did not see the
632 FINZ MULTISTATE METHOD
pedestrian in the roadway and drove over her,
fracturing her leg.
If the pedestrian brings an action against the
taxi driver for damages resulting from her
fractured leg, the taxi driver's liability will
most probably turn on whether it was foresee-
able that
(A) the driver would drive negligently and
would leave the pedestrian lying in the
roadway after striking her.
(B)
a person struck by an automobile would
be involved in a second accident within
a short period of time.
(C) a person would be in the roadway.
(D) the taxi driver would drive while intoxi-
cated by the drug PCP.
22. The power company operated a nuclear power
plant on the seashore just outside the city and
sold electricity generated by its operations to
city residents. To cool its equipment, the
power company drew water from the ocean
and piped it through portions of its plant.
Because this operation made the water highly
radioactive, the power company stored used
water in a series of large concrete holding
ponds. The water stored in this fashion was
subjected to a series of procedures designed to
"neutralize" it by removing the radioactivity
before it was returned to the ocean. Because of
an earthquake, one of the concrete holding
ponds cracked, permitting several million gal-
lons of neutralized water to escape. Although
the escaping water was not radioactive, it
caused substantial damage to the fields of the
fanner as it passed over them.
If the farmer asserts a claim against the power
company for damage to his realty, the court
should find for
(A) the farmer, because operating a nuclear
power plant is an abnormally dangerous
activity.
(B) the farmer, because water is a substance
that is likely to do great harm if it
should escape from captivity.
(C) the fanner, because it was unreasonable
to operate a nuclear power plant in an
area where an earthquake could occur.
(D) the power company, because the damage
resulted from an Act of God.
23. The company was a manufacturer of explo-
sives used in mining for gold and silver. Its
warehouse, which contained large quantities of
explosives, was located a short distance from
the town. A group of political extremists were
planning to set off a series of bombs in public
places in the town. Several members broke
into the company's warehouse for the purpose
of stealing explosives to use in making bombs.
Their entry set off an alarm that brought the
police. Rather than surrender to the police, the
terrorists committed suicide by detonating
the explosives that they had stolen. The blast
caused the entire warehouse to explode. A
house owned by the homeowner and located a
half mile away was damaged by the explosion.
If the homeowner asserts a claim for damages
against the company on the ground that storing
explosives was an abnormally dangerous activ-
ity, which of the following would be the com-
pany's most effective argument in defense?
The explosion did not result from unrea-
sonable conduct by the company.
The damage did not result from a physi-
cal invasion of the homeowner's realty
by any tangible object in the control of
the company.
The conduct of the terrorists was an inter-
vening cause of harm.
It was not foreseeable that terrorists
would deliberately detonate explosives
in the warehouse.
24. The seller kept an antique hay wagon in front
of her house as a yard ornament. On several
occasions, she offered to sell the hay wagon to
her neighbor, the buyer, for $500. Although
the buyer admired it, he had always been
unwilling to pay the seller's price. After read-
ing a magazine article about the increasing
popularity of farm antiques, the buyer
TORTS QUESTIONS
633
concluded that the value of the seller's hay
wagon was likely to increase, and that it
would therefore be a good investment. One
day he approached her, saying, "If you're still
interested in selling that hay wagon, I'll pay
$500." The seller was surprised that he had
changed his mind, but did not ask him why
because she was afraid that he would change it
back again. Instead, she said, "I'll take your
offer," and sold him the wagon. Two months
later, an antique dealer who saw the wagon in
the buyer's yard bought it from him for
$2,000.
If the seller asserts a misrepresentation claim
against the buyer, the court should find for
the seller, if the buyer knew more about the
value of antique hay wagons than the seller
did.
the seller, because the buyer purchased
the hay wagon for the undisclosed pur-
pose of profiting from his investment.
the buyer, because he was not required to
disclose his purpose in purchasing the
hay wagon.
the buyer, if the seller was initially satis-
fied with the price that the buyer paid
her for the hay wagon.
25. A state statute provides that no person shall
transport passengers for hire in an airplane
unless that person shall be licensed as a com-
mercial airplane pilot. A pilot owned a small
private airplane but did not have a commercial
pilot's license. A businessman, who had a
business engagement in the City of Atlantis,
offered the pilot $200 to fly him there in the
pilot's plane. The pilot agreed, after informing
the businessman that he did not have a com-
mercial pilot's license as required by law.
While they were flying over the City of
Byzantine, the pilot realized that he had mis-
calculated the amount of fuel that he needed
for the trip. As a result, he was forced to land
at the Byzantine Airport. After landing and
while waiting to be refueled, the pilot's plane
was struck by a plane that was being negli-
gently operated by another pilot. The first pilot
and the businessman were both injured in the
collision. The jurisdiction applies the all-or-
nothing rule of contributory negligence.
The businessman asserted a claim against the
first pilot, alleging that the first pilot was neg-
ligent in miscalculating the quantity of fuel
needed to make the trip to Atlantis. Which of
the following arguments would be the first
pilot's most effective argument in defense?
(A) The businessman assumed the risk,
because he knew that the first pilot did
not have a commercial pilot's license.
(B) The businessman was contributorily neg-
ligent in accepting a ride with the first
pilot, whom he knew to be unlicensed.
(C) The first pilot's miscalculation was not a
legal cause of the injury sustained by
the businessman, because the first
pilot's plane was safely on the ground
when struck by the plane operated by
the second pilot.
(D) The first pilot's miscalculation was not a
factual cause of the injury sustained by
the businessman, because the harm
would not have occurred if the second
pilot had not been negligent.
26. A company was the manufacturer of various
products used by physicians engaged in prac-
tice and research. One of its products was
Medihol, a colorless alcohol used by physi-
cians for cleaning the skin of patients before
administering injections. Another of its prod-
ucts was Slid-Kleen, a red liquid for cleaning
glass microscope slides used in medical and
research laboratories.
Because Slid-Kleen contained a strong solvent
that was damaging to human skin, the label
normally affixed to bottles in which it was
sold contained language advising users to wear
rubber gloves while handling the product.
As a result of an oversight at the company's
plant, Medihol labels were erroneously placed
on several bottles of Slid-Kleen. One of the
mislabeled bottles was delivered to a doctor's
634 FINZ MULTISTATE METHOD
office. In giving an injection to a patient, the
doctor used the Slid-Kleen, believing it to be
Medihol. As a result, the patient sustained
damage to his skin.
In a negligence action by the patient against
the company, if one of the following facts or
inferences were true, which would provide the
company with its strongest argument in
defense?
(A) It was unforeseeable that a doctor with
the doctor's training and experience
would mistake Slid-Kleen for Medihol,
since they were two different colors.
(B) If the doctor had been acting reasonably,
she would have realized that the product
that she was using was not Medihol,
since it was red instead of colorless.
(C) The doctor's failure to notice that the
product that she was using was red, and
therefore was not Medihol, amounted to
gross negligence.
(D) The doctor's conduct was an intervening
cause of the patient's injury.
27. Which of the following persons is most likely
to recover in an action against the manufac-
turer of a hypodermic needle?
(A) A doctor's child, who found the needle in
the doctor's medical bag and was
injured when a defect caused it to break
while the child was playing with it.
(B) A doctor's patient, who was injured when a
defect caused the needle to break while the
doctor was injecting him with it.
(C) A dentist, who lost profits when she was
unable to inject a patient with the needle
because a defect caused it to break.
(D) A narcotics addict, who contracted hepa-
titis because the needle was infected
with the microbe that caused that dis-
ease.
28. A crop duster sprayed insecticides onto grow-
ing crops from an airplane that she flew within
15 feet of the ground. In locating the fields of
her customers, she used a map that the county
published for that purpose and that identified
every parcel of real estate in the area by a par-
cel number. A farmer hired the crop duster to
spray his fields with insecticide. The farmer
knew that his farm was identified on the
county map as parcel 612, but by mistake he
told the crop duster that it was parcel 621. As
a result, the crop duster sprayed the farm that
the county map identified as parcel 621. That
farm belonged to a gardener, who had con-
tracted to grow his crop without chemical
insecticides and to sell it to an organic produce
distributor. As a result of the crop duster's
spraying, the gardener was unable to fulfill his
contract and sustained serious economic
losses.
If the gardener asserts a claim against the crop
duster for damages resulting from trespass to
land, the court should find for
(A) the gardener, because crop dusting is an
abnormally dangerous activity.
(B) the gardener, because the crop duster
intentionally flew through the airspace
above his land.
(C) the crop duster, because she reasonably
believed that the farm that she was
spraying belonged to the farmer.
(D) the crop duster, because there was no
damage to the gardener's land.
29. A state senator was chair of the Senate Investi-
gations Committee, which was looking into
accusations of corruption in the governor's
office. Because reports of committee agents
were beginning to indicate that there was a
sound basis for the accusations, the senator
kept them locked in her office safe to prevent
them from becoming public knowledge before
the investigation could be completed. A
reporter was an investigative journalist who
specialized in exposing dishonesty in govern-
ment. One night, he broke into the senator's
office, picked the lock on her safe, and photo-
graphed the documents that it contained. The
following day, realizing that the security of the
documents had been compromised, the senator
TORTS QUESTIONS
635
conducted a press conference in which she
made their contents known. Before she had
completed the conference, however, newspa-
pers containing the reporter's story about the
papers in the senator's safe were being sold.
If the senator instituted an action against the
reporter for invasion of privacy, the court
should find for
the reporter, since the documents in the
senator's safe were newsworthy.
the reporter, since he was protected by
the First Amendment to the United
States Constitution.
the reporter, since the senator made the
documents a matter of public record at
the press conference.
the senator, since the reporter entered her
office without her permission and broke
into her safe.
30. A boy, who was 11 years of age, was playing
with the plaintiff, who was 10 years of age.
While they were playing together, the boy
offered to show the plaintiff his new air rifle.
The air rifle was manufactured by a local
company. The boy purchased it from the
defendant with money that he earned by mow-
ing the lawns of several of his neighbors.
While demonstrating the air rifle to the plain-
tiff, the boy accidentally shot him with it,
severely injuring the plaintiff's eye. The plain-
tiff subsequently asserted a negligence claim
against the defendant.
If the plaintiff is successful in his claim
against the defendant, it will be because a jury
finds that
(A) any negligence by the company in the
design of the air rifle should be imputed
to the defendant.
(B) the air rifle was defectively designed.
(C) the air rifle was defectively manufac-
tured.
(D) it was unreasonable for the defendant to
sell the air rifle to the boy.
31. A car dealer was in the auto rental business.
His rates were low because the cars in his
inventory were all at least six years old, and
many of them were in poor condition. To keep
his expenses as low as possible, he had his
cars serviced by the mechanic, a 17-year-old
student at the High School of Automotive
Trades. The mechanic worked on the car deal-
er's cars in his parents' garage after school
and on weekends, charging fees that were
lower than any of the professional repair shops
in town. Sometimes the car dealer found it
necessary to send a car back to the mechanic
three or four times before the mechanic finally
succeeded in repairing it correctly, but since
the mechanic did not charge for the return
trips, the car dealer did not mind doing so.
One of the car dealer's cars had a leaking
frammis in the carburetor, which the car dealer
knew made it unsafe to drive. He had the
frammis repaired by the mechanic and then
rented the car to the plaintiff. One hour later,
while the plaintiff was driving the car, the
frammis began leaking again. As a result, the
car exploded, injuring the plaintiff.
If the plaintiff asserts a claim against the car
dealer, the plaintiff's most effective argument
in support of her claim would be that
(A) the car dealer is vicariously liable for the
negligence of his employee.
(B) the duty to maintain a safe car was non-
delegable.
(C) the mechanic was an independent con-
tractor.
(D) it was unreasonable for the car dealer to
hire the mechanic to repair the car.
32. Which statement most correctly completes the
following sentence? A retailer owes its cus-
tomers
(A) no duty to inspect products furnished by
reputable manufacturers.
(B) a duty to inspect the packages of all
products sold, but no duty to inspect the
contents of those packages.
636 FINZ MULTISTATE METHOD
(C) a duty to inspect only those products that
are furnished by manufacturers whose
products are not well known to the
retailer.
(D) a duty to make a reasonable inspection of
all products that are sold by that retailer.
33. The employee was employed by the employer
as chief field mechanic. When he received his
salary, the employee noticed that he had not
been paid for the overtime that he had worked
the previous month. When he complained to
the employer about it, the employer said that
all company employees were expected to put
in extra time when necessary, and that he had
no intention of compensating the employee for
the excess hours. The employee resigned
immediately and advised the employer that he
would hold the tools that the employer had
issued to him until he received payment.
After the employee's resignation, the employer
wrote him a letter in which he said, "You were
never any good as a mechanic, and in addi-
tion, you were the most dishonest employee
this company ever had." These statements
were false. The employee's mother, who lived
with the employee and frequently opened his
mail, read the letter as soon as it arrived. In an
action by the employee against the employer
for defamation, a court should find for
(A) the employee, because the employer's
statements were published to the
employee's mother.
(B) the employee, only if the employer had
reason to know that someone other than
the employee would open and read the
letter.
(C) the employer, because the statements con-
tained in the letter were communicated
only to the employee.
(D) the employer, because of the employer's
privilege.
34. The pilot was injured when the helicopter that
he was flying ran out of fuel and fell from the
air, crashing into the roof of a homeowner's
house. The pilot purchased the helicopter from
the helicopter maker two months before the
accident occurred. The helicopter came
equipped with a fuel gauge that was manufac-
tured by a gauge maker. The day after the pilot
purchased the helicopter, he noticed that the
fuel gauge gave incorrect readings. He com-
plained to an officer of the helicopter maker,
who told him to have it fixed and to send the
helicopter maker the bill. A week before the
accident, the pilot hired an independent air-
plane mechanic to repair the fuel gauge. The
mechanic worked on the gauge but failed to
repair it properly. The day before the accident,
the pilot's partner flew the helicopter, using
most of the fuel in the tank. Although the
pilot's partner noticed that the fuel gauge con-
tinued to indicate that the tank was full, he
neither mentioned it to the pilot nor replaced
the fuel in the tank. On the day of the acci-
dent, the fuel gauge indicated that the tank
was full, although it was actually almost
empty.
If the pilot wishes to assert a claim for dam-
ages on a theory of strict liability in tort, he is
most likely to recover against
(A) the helicopter maker only.
(B) the helicopter maker and the pilot's part-
ner only.
(C) the helicopter maker and the mechanic
only.
(D) the helicopter maker, the pilot' s partner,
and the mechanic.
35. A gravel pit owner was the owner of a gravel
pit in the northern part of the state. Because
the land on which the pit was located was usu-
ally covered by a thick layer of snow during
the winter months, the gravel pit owner did
not conduct operations at the pit during the
winter, and the land remained unoccupied dur-
ing that season. The gravel pit owner was
aware of the fact that neighborhood children
used a steep slope on his realty for sledding
during the snow season, and he feared that one
of the children would be injured by sledding
onto the public road adjacent to the property.
Although he could have prevented this from
(A) The seller made no representation con-
cerning the zoobie.
(B) The buyer did not rely on the seller's
representations concerning the zoobie.
(C) The buyer was not justified in relying on
the seller's representations concerning
the zoobie.
(D) The buyer did not sustain damage.
The first driver was driving north on Canal
Street. As he approached the intersection of
First Avenue, he noticed that the traffic light
was red against him. Preparing to stop, he
stepped on his brake pedal. Because the brakes
were not working properly, he could not stop,
and he continued into the intersection. A sec-
ond driver, who was driving east on First
Avenue, saw the first driver go through the red
light. Because the light was green in his favor,
however, the second driver did not stop; he
continued into the intersection, believing that
he could avoid striking the first driver by
steering around him. The two vehicles collided
in the intersection. Although damage to the
first driver's car was minimal, the second driv-
er's car was totally destroyed. The jurisdiction
has a statute that prohibits entering an inter-
section against a red traffic signal light and
another statute that adopts the all-or-nothing
rule of contributory negligence.
In an action by the second driver against the
first driver, the court should find for
(A) the first driver, since the second driver
had the last clear chance to avoid the
accident.
(B) the first driver, if it was unreasonable for
the second driver to enter the intersec-
tion when he did.
(C) the second driver, if the first driver's vio-
lation of statute was a substantial factor
in producing the damage.
(D) the second driver, since the first driver's
conduct was negligence per se.
TORTS QUESTIONS 637
happening by erecting a small fence at a cost
of under $200, the gravel pit owner was
unwilling to expend that sum. Instead, he
posted a sign that read, "No Sledding, Keep
Out." Three weeks later, an eight-year-old boy
was sledding down the hill on the gravel pit
owner's property when his sled coasted onto
the adjacent public road into the path of a
vehicle driven by a postman. The boy sus-
tained serious injuries when he was struck by
the postman's vehicle.
If the boy asserts a negligence claim against
the gravel pit owner, the court should find for
(A) the boy, because danger invites rescue.
(B) the boy, if the gravel pit owner's failure
to erect a fence to prevent the accident
was unreasonable.
(C) the gravel pit owner, because the postman
had the last clear chance to avoid injur-
ing the boy.
(D) the gravel pit owner, if the postman's
conduct was an intervening cause of
harm.
36. The seller knew that the zoobie of his car's
engine was cracked. Because he wanted to sell
the car, he filled the crack with putty and
painted it so that the crack would not show.
Then he brought the car to the buyer, a used
car dealer, and offered to sell it for $1,000
cash. The buyer placed the car on a lift so that
he could inspect it from underneath. He
noticed the filled crack but thought that he
would be able to resell the car in spite of it.
The buyer offered $500, which the seller
accepted. The next day, the buyer was showing
the car to a customer when the crack in the
zoobie caused the engine to explode, necessi-
tating $500 in repairs and injuring the cus-
tomer.
If the buyer institutes an action against the
seller for misrepresentation, which of the fol-
lowing would be the seller's most effective
argument in defense?
38. The store owner was the operator of an appli-
ance store. Once, while testing a refrigerator
638 FINZ MULTISTATE METHOD
prior to selling it, she discovered a defect in
its wiring. Realizing that the defect would
make it dangerous for a person to touch the
refrigerator while it was plugged in, she
resolved not to sell it. Instead, she placed it on
the sidewalk in front of her store to attract the
attention of passersby. After two years, the
refrigerator became so dirty that she decided
to get rid of it. In crayon, the store owner
wrote "AS IS $25" on its door. A customer,
who was building a food smoker, needed the
body of a refrigerator. When he saw the one in
front of the store owner's store, he bought it.
As she was loading it onto the customer's
pickup truck, the store owner said, "I hope
you know that this refrigerator doesn't work."
The customer said that he did. When the cus-
tomer got the refrigerator home, he plugged it
in and received a severe electrical shock while
attempting to open its door.
In an action by the customer against the store
owner for damages resulting from his injury,
the court will probably find for
(A) the customer, if it was unreasonable for
the store owner to sell the refrigerator
without warning him about the wiring
defect.
(B) the customer, since the refrigerator was
unfit for ordinary use.
(C) the store owner, since the customer pur-
chased the refrigerator "AS IS."
(D) the store owner, if it is found that the
customer had the "last clear chance" to
avoid being injured.
39. The defendant was hunting rattlesnakes on his
land with a pistol when he saw the plaintiff
carrying a shotgun and attempting to enter the
defendant's land by crawling under the barbed
wire fence that surrounded it. He waited until
the plaintiff had gotten past the fence and
approached him, telling him that he was tres-
passing and ordering him to leave. The plain-
tiff said, "I only want to shoot some birds. I
got a right to do that if I want to, don't I?"
After the plaintiff said this, the defendant
placed his hand on the plaintiff's chest and
pushed him gently backward, repeating his
demand that the plaintiff leave. The plaintiff
shoved the defendant away from him and
pointed his shotgun at the defendant, saying,
"Nobody pushes me, Mister." The defendant
immediately drew his pistol from the holster
on his belt and fired at the plaintiff, striking
him in the arm and causing him to drop his
shotgun.
If the plaintiff asserts a claim against the
defendant for battery, the court should find for
(A) the defendant, if he fired at the plaintiff
to defend his realty against a trespass.
(B) the defendant, if he fired at the plaintiff
to defend himself against the plaintiff's
threat with the shotgun.
(C) the plaintiff, because the defendant struck
the first blow.
(D) the plaintiff, because the defendant did
not use force against him until his entry
onto the realty was complete.
40. The felicet is a species of wildcat that inhabits
the Island of Langoa in the Creolic Ocean.
Although the wild felicet is ferocious, natives
of Langoa frequently capture young felicets
and, after taming them, keep them as
house pets. The defendant grew up on the
Island of Langoa, where he obtained his pet
felicet. When he emigrated to the United
States five years ago, he was permitted to
bring his felicet with him after submitting it to
a six-week period of quarantine. The cat had
been gentle ever since the defendant tamed it
eight years before leaving Langoa. Recently,
the defendant's neighbor, the plaintiff, was
walking past the defendant's house when the
felicet tore through a window screen, jumped
into the street, and attacked the plaintiff, seri-
ously injuring him. The plaintiff subsequently
asserted a claim against the defendant for his
damages.
If the plaintiff is successful in his claim
against the defendant, it will probably be
because
TORTS QUESTIONS
639
(A) the plaintiff's damages resulted from the
defendant's keeping a wild animal.
(B) it was foreseeable that the felicet would
do something unforeseeable.
(C) the thing speaks for itself (res ipsa loqui-
tur).
(D) the plaintiff's keeping the felicet
amounted to a private nuisance.
41. A company manufactured a safety helmet in
hopes of selling it to the United States Marine
Corps for general utility purposes, but it was
unsuccessful in doing so. Instead, it sold the
helmets to the general public under the name
Head Shields. Head Shields were packaged in
boxes that showed pictures of three persons
wearing the helmet: one riding a horse, one
riding a motorcycle, and one doing construc-
tion work. A motorcyclist found a Head Shield
that someone had discarded in its original box.
He wore it the next day while riding his
motorcycle and sustained a severe head injury
when he fell from his motorcycle.
The motorcyclist asserted a claim against the
company for his injuries in a jurisdiction that
has adopted a rule of "pure comparative negli-
gence." At the trial, the motorcyclist proved
that the Head Shield was not suitable for use
as a motorcycle helmet, and that if it had been,
he would not have sustained injury.
The court should find for
(A) the company, because the motorcyclist
found the Head Shield.
(B) the company, if Head Shields were not
designed or intended for use as motor-
cycle helmets.
(C) the motorcyclist, unless his fall from the
motorcycle resulted from his own unrea-
sonable conduct.
(D) the motorcyclist, because the box in
which the Head Shield was sold con-
tained a picture of a person wearing the
Head Shield while riding a motorcycle.
42. When the owner brought his car to the
mechanic's shop for repairs, the mechanic told
him that he would test-drive the car after
repairing it. While the mechanic was test-
driving the car, he struck a pedestrian. A stat-
ute in the jurisdiction provides that "The
owner of any motor vehicle operated on the
roads of this state shall be vicariously liable
for the negligence of any person operating said
motor vehicle with said owner's permission."
The pedestrian instituted an action against the
owner and the mechanic and obtained a judg-
ment against both of them for $10,000.
If the owner pays the judgment in full, which
of the following is correct regarding the own-
er's rights against the mechanic?
(A) The owner may recover $10,000 from the
mechanic.
(B) The owner may recover $5,000 from the
mechanic.
(C) The owner may recover $7,500 from the
mechanic.
(D) The owner may not recover from the
mechanic.
43. Mayflower seeds are a common ingredient in
bird food. Although they are sometimes pro-
cessed for use as cooking oil, they are not usu-
ally eaten raw by human beings because they
have a bitter, oily taste. The breeder was a
breeder of exotic birds. Since he had studied
bird nutrition, he preferred to mix feed for his
birds according to his own formula instead of
using commercially available mixes. For this
purpose, he purchased a sealed 50-pound
package labeled "Mayflower Seeds" from the
dealer, who was in the business of selling sup-
plies for bird and livestock breeders. The
dealer had bought the sealed package from the
wholesaler, a wholesaler of seed and grain.
Because of negligence at the wholesaler's
plant, the seeds in the package were poison-
ous. The breeder ate some of the Mayflower
seeds while he was mixing the bird food and
became ill several hours later as a result.
Before becoming ill, the breeder fed the seeds
to several of his birds, which died as a result.
640 FINZ MULTISTATE METHOD
If the breeder brings an action in strict liability
against the wholesaler for the value of the
birds that died, a court is most likely to find
for
(A) the breeder, if the poisonous nature of the
seeds was a defect.
(B) the breeder, but only if it was reasonable
for the dealer to resell the seeds without
inspection.
(C) the wholesaler, since the wholesaler had
no contractual relationship with the
breeder.
(D) the wholesaler, unless the breeder is
unable to recover damages from the
dealer.
44. Although he had been warned that swimming
within one hour after eating was likely to
cause a cramp, a swimmer went swimming in
the lake immediately after lunch. He had been
swimming for a few minutes when he devel-
oped severe cramps. Finding himself unable to
swim any further, he began calling for help.
The swimmer's cries attracted the attention of
a rescuer, who happened to be walking near
the lake. The rescuer jumped into the water,
swam to the swimmer's side, and, grabbing
the swimmer by the hair, towed him to safety.
In getting out of the lake, however, the rescuer
cut his leg on a fragment of glass that was
embedded in the lake bottom.
If the rescuer asserts an action against the
swimmer for personal injuries, the court
should find for
(A) the rescuer, if it was negligent for the
swimmer to swim so soon after eating.
(B) the rescuer, because his injury occurred
while he was attempting to rescue the
swimmer.
(C) the swimmer, because danger invites res-
cue.
(D) the swimmer, if the glass fragment is an
intervening cause of the rescuer's injury.
45. The company was a manufacturer of computer
hardware. The defendant was a retailer who
purchased products from the company. At an
industrial convention, the defendant told the
company that he heard that their mutual friend,
the plaintiff, was about to go into personal
bankruptcy. The company did not believe what
the defendant was telling him and resolved to
mention it to the plaintiff as soon as the
opportunity presented itself. The following
day, the plaintiff called the company to discuss
computer hardware. The company told the
plaintiff what the defendant had said at the
party. The plaintiff laughed, assured the com-
pany that he was in excellent financial condi-
tion, and they both laughed at the rumor.
If the plaintiff asserts a defamation claim
against the defendant, which of the following
would be the defendant's most effective argu-
ment in defense?
(A) The plaintiff did not experience mental
suffering.
(B) The plaintiff did not sustain damage to
his reputation as a result of the state-
ment.
(C) The defendant was only repeating what
he had heard.
(D) The defendant did not publish any state-
ment about the plaintiff.
46. The plaintiff was employed as an insulation
installer by various builders and general con-
tractors for a period of 35 years. During that
time, he was repeatedly exposed to an insulat-
ing material known as plastic wool, which was
manufactured by the defendant. Last year, it
was discovered for the first time that exposure
to plastic wool is a cause of cancer and that
the plaintiff had contracted cancer as a result
of his contact with the product.
In a jurisdiction that applies the all-or-nothing
rule of contributory negligence, if the plaintiff
asserts a negligence claim against the defen-
dant for damages resulting from the plaintiff's
exposure to plastic wool, the defendant's most
TORTS QUESTIONS 641
effective defense would be based on the argu-
ment that
(A) the plaintiff assumed the risk.
(B) the defendant did not know that contact
with plastic wool would result in cancer.
(C) the reasonable person in the defendant's
situation would not have anticipated that
exposure to plastic wool would result in
cancer.
(D) the plaintiff's only remedy is that created
by workers' compensation statutes.
47. An insecticide factory was located on the edge
of the city. When the wind blew from the east,
foul-smelling waste gases from the factory's
chimneys were blown over the city, causing
most of the residents to experience a burning
of the eyes and throat.
A gardener's flower and plant shop was
located across the street from the factory in a
building that the gardener rented from a land-
lord. Gases from the factory caused some of
the potted plants that the gardener had for sale
in his shop to die. One of the gardener's
employees suffered from allergies. As a result,
he found the gases so irritating to his eyes that
he was unable to continue working at the gar-
dener's shop and had to quit his job. Who may
successfully assert a private nuisance claim
against the factory?
(A) The landlord only.
(B) The landlord and the gardener only.
(C) The gardener and the employee only.
(D) The landlord, the gardener, and the
employee.
48. When the defendant entered a restaurant for
lunch, she hung her coat on the coatrack.
When she was leaving, she removed from the
rack a coat that looked like hers, but which
actually belonged to the plaintiff. At the time
she took it, the defendant believed it to be her
coat, but when she had driven two miles from
the restaurant, she realized that it was not hers.
She turned around and was driving back to the
restaurant when she was involved in an auto-
mobile accident. The plaintiff's coat was com-
pletely destroyed in the accident.
If the plaintiff asserts a claim against the
defendant for trespass to chattel, the court
should find for
(A) the plaintiff, because the coat was com-
pletely destroyed after the defendant
took it.
(B) the plaintiff, unless the automobile acci-
dent in which the coat was destroyed
occurred without fault by the defendant.
(C) the defendant, because she believed the
coat to be her own when she took it.
(D) the defendant, if she was making a rea-
sonable effort to return the coat when it
was destroyed.
49. A trucker was eating cherry pie in a restaurant
when a cherry pit contained in the pie stuck in
his throat. Unable to breathe, the trucker began
choking. A doctor, who was eating in the res-
taurant, ran to the trucker's aid and performed
an operation known as an emergency trache-
otomy. She did this by cutting the skin of the
trucker's throat with a pocket knife and creat-
ing an opening in his windpipe through which
the trucker was able to breathe. Then, at the
doctor's direction, the trucker walked across
the street to a hospital so that the opening that
the doctor created could be cleaned and ban-
daged. Because hospital employees negligently
failed to enter the trucker's name in the emer-
gency room register, he sat in the emergency
room for six hours without further attention.
At that time, an earthquake caused a portion of
the hospital's structure to fall, striking the
trucker in the head and fracturing his skull.
In an action by the trucker against the hospital
for damages resulting from his fractured skull,
the court is most likely to find for
(A) the hospital, but only if the state has a
"Good Samaritan" statute.
(B) the hospital, unless the doctor's conduct
was found to be foreseeable.
642 FINZ MULTISTATE METHOD
(C) the hospital, unless it was foreseeable that
the trucker would be injured by an
earthquake if left waiting for six hours.
(D) the trucker, since a hospital owes its
patients a duty to protect them against
natural disasters.
50. A homeowner went to a garden supply store to
purchase fertilizer for the apple trees that grew
in his backyard. Since he did not know what
brand was best for his purposes, he asked the
store's owner to recommend a fertilizer that
was especially good for apple trees. The store
owner suggested a product that he said was
good for all fruit trees. The homeowner pur-
chased the product and applied it as the label
directed. While doing so, he got some of the
product on his hands. Because of an allergy
that he had, the product irritated his skin,
causing him considerable pain and disabling
him for a period of time.
In an action by the homeowner against the
store owner for damages resulting from breach
of warranty, which of the following comments
is most correct?
(A) There was no implied warranty that the
product was fit for the homeowner's
particular purpose because his purpose
was the same as the product's ordinary
use.
(B) There was no implied warranty of mer-
chantability since the homeowner relied
on the store owner's recommendation in
purchasing the product.
(C) There was neither an implied warranty
that the product was fit for a particular
purpose nor an implied warranty of mer-
chantability.
(D) There was an implied warranty that the
product was fit for the homeowner's
particular use and there was an implied
warranty of merchantability.
51. The defendant is a supplier of telephone ser-
vice to the city. Many of the wooden poles
from which the defendant's wires are strung
have been standing for more than 40 years and
are in a rotted condition. A driver lost control
of his automobile because he was driving
while intoxicated, and he collided with one of
the defendant's rotted poles. As a result of the
collision, the pole fell over, striking a parked
car and injuring the plaintiff, who was sitting
in it.
In an action by the plaintiff against the defen-
dant, the court should find for
(A) the plaintiff, if it was unreasonable for
the defendant to permit its poles to
become rotted.
(B) the plaintiff, since it was foreseeable that
if a pole fell, it would injure a person
sitting in a parked car.
(C) the defendant, since the driver's conduct
either amounted to gross negligence or
was criminal.
(D) the defendant, if the force of the collision
would have caused even a reasonably
good pole to fall.
52. Automobiles driven by Able and Baker col-
lided in an intersection. Able and Baker
asserted negligence claims against each other
for damage to their vehicles. In addition, a
passenger in Able's car at the time of the acci-
dent asserted a negligence claim against both
of them for her personal injuries. The claims
were all consolidated and tried together. In
answer to specific questions posed by the
court, the jury found that the accident was 60
percent the fault of Able and 40 percent the
fault of Baker. In addition, the jury found that
damage to Able's car amounted to $1,000, that
damage to Baker's car amounted to $10,000,
and that damage to the passenger amounted to
$100,000. The court ruled that Able and Baker
were jointly and severally liable for the pas-
senger's injuries.
The jurisdiction had a statute that provided
that "In any negligence action, a plaintiff's
recovery shall not be barred by that plaintiff's
fault, but the recovery of said plaintiff shall be
diminished in proportion to that plaintiff's
TORTS QUESTIONS 643
fault." Which of the following correctly states
the sum to which Baker is entitled?
(A) $6,000 ($10,000 less 40 percent).
(B) $4,000 ($10,000 less 60 percent).
(C) $10,000.
(D) 0.
53. A boy, who was 11 years old, received a sled
manufactured by the sled company from his
uncle as a Christmas present. Since he already
had a better sled, the boy sold the sled to his
neighbor, the plaintiff. The plaintiff was riding
the sled down a snow-covered hill when one
of the bolts that held it together broke, causing
the sled to overturn and injure the plaintiff
severely. The bolt broke because of a crack
that existed when the sled left the sled factory
but which was too minute to be discovered by
reasonable inspection. If the plaintiff brings an
action against the sled company, the court
should find for
(A) the plaintiff, if the cracked bolt was a
defect.
(B) the plaintiff, but only if the boy did not
use the sled before selling it to the
plaintiff.
(C) the sled company, since the sale by the
boy was outside the regular course of
business.
(D) the sled company, because the crack was
too minute to be discovered upon rea-
sonable inspection.
54. The landlord was the owner of a four-story
office building. The entire second floor of the
building was leased to an attorney, and the
other floors were divided into offices and
leased to various other tenants. Pursuant to the
lease between the landlord and the attorney, a
building manager employed by the landlord
was to be on duty daily between the hours of
8 A.M. and 6 P.M. The building was to be
open to the public during those hours. At other
times, the attorney was free to enter by using
his key. On April 1, the attorney was riding in
the building elevator when it suddenly and
without warning plunged swiftly downward,
shaking the attorney up severely. The attorney
immediately notified the landlord, who prom-
ised to fix it. The landlord did nothing about
it, however. On April 2, a client called to
make an appointment to consult with the attor-
ney for legal advice. Because the client was
unable to come to the attorney's office during
regular business hours, the attorney told the
client to come the following morning at
6:30 A.M. On April 3, the attorney met the
client at the entrance to the building, let them
both in with his key, and led the client to the
elevator. While they were riding in the eleva-
tor to the attorney's office, the elevator sud-
denly plunged swiftly downward, stopping
short when it reached the bottom of the eleva-
tor shaft. The client was severely injured in
the fall.
The client asserted a negligence claim against
the attorney for damages resulting from the
elevator accident. The court should find for
(A) the client, if the attorney knew or should
have known that the elevator might not
be working properly.
(B) the client, because the entire second floor
had been leased to the attorney.
(C) the attorney, if the lease required the
landlord to keep the elevator in good
repair.
(D) the attorney, because he was only a ten-
ant in the building.
55. A trucker was driving a truckload of gravel
over a highway in a rural part of the state
when, through no fault of her own, one of the
tires on her truck blew out, causing the truck
to go out of control. The truck overturned,
spilling the gravel onto the land of the land-
owner, which was adjacent to the road. The
trucker, who was unhurt, returned later with
another truck and a tractor equipped with a
power shovel. Using the power shovel, the
trucker scooped up the spilled gravel and
loaded it onto the other truck.
644 FINZ MULTISTATE METHOD
If the landowner asserts a claim against the
trucker for trespass to land, the court should
award the landowner a judgment for
(A) nominal damags only.
(B) all damages resulting from the spilling of
gravel onto the landowner's land.
(C) only the damages caused by the trucker's
removal of the gravel from the landown-
er's land.
(D) no damages.
56. A horseman owned and bred horses and was
an excellent rider. He purchased a horse
known as Thunder, even though he had heard
that Thunder was wild and dangerous, because
he hoped that he would be able to "break" or
train him. Each time the horseman attempted
to approach the horse, however, Thunder
reared and kicked at him. Finally, the horse-
man hired a professional horse trainer to break
Thunder. After explaining that Thunder had
repeatedly attacked him, the horseman showed
the trainer to Thunder's corral. While the
horseman stood outside watching, the trainer
entered the corral, holding out his hand and
making soft murmuring noises to attract
Thunder's attention. When Thunder saw the
trainer, the horse kicked him, fracturing the
trainer's leg.
If the trainer asserts a claim for damages
against the horseman, the court should find for
(A) the trainer, since the horseman knew that
Thunder had a propensity to attack
human beings.
(B) the trainer, since Thunder was a wild ani-
mal.
(C) the trainer, since the horseman acted
unreasonably in permitting the trainer to
enter the corral under the circumstances.
(D) the horseman, since the trainer knew that
Thunder was dangerous when he
entered the corral.
57. A man bought a used car from the car dealer.
Although the car dealer assured the man that
he believed the car to be in good condition,
the contract of sale signed by both the man
and the car dealer contained the phrase "This
Vehicle Sold AS IS" in large black letters. The
man was driving the car the following day
when the steering jammed, causing the car to
collide with a power pole. The man's wife,
who was sitting beside him in the car, was
injured in the crash.
If the wife asserts a claim for damages against
the car dealer on the grounds that the car
dealer breached the implied warranty of mer-
chantability, the court should find for
(A) the car dealer, because the contract of
sale contained the phrase, "This Vehicle
Sold AS IS."
(B) the car dealer, because he did not enter
into any contractual relationship with
the wife.
(C) the wife, because the vehicle was unfit
for ordinary use.
(D) the wife, because the car dealer said that
he believed the car to be in good condi-
tion.
58. The plaintiff brought her car to the defendant,
a used car dealer, asking him to sell it for her.
The defendant said that he would attempt to
do so on consignment, at a commission con-
sisting of 20 percent of the sale price. The
plaintiff said that the terms were acceptable to
her, but that because she had recently spent
$800 for a custom two-tone, black-and-silver
paint job, she wanted the car kept out of the
sun. The defendant agreed, and the plaintiff
left the car with him.
The defendant left the car in the sun, which
caused its paint to fade. Believing that a new
paint job would make the car easier to sell, the
defendant had it painted red without consulting
the plaintiff. Before it was repainted, the
defendant drove the plaintiff's car 4,000 miles
on his own personal business. After it was
painted, the defendant's customers drove it an
additional 1,000 miles while deciding whether
TORTS QUESTIONS 645
to purchase it. Although the value of the plain-
tiff's car did not change while it was in the
defendant's possession, the defendant was
unable to sell the car. The plaintiff subse-
quently asserted a conversion claim against the
defendant.
If the plaintiff is successful in her conversion
action, the most she will be entitled to recover is
(A) the value that the car had had at the time
the plaintiff delivered it to the defen-
dant.
(B)
the cost of restoring its paint to the con-
dition that existed at the time she deliv-
ered it to the defendant.
(C) the reasonable value of the car's use for
4,000 miles.
(D) nothing.
59. A company manufactures a product called
Term-Aid, consisting of chemical pellets that
emit fumes that are poisonous to termites and
their eggs. Because Term-Aid fumes are poi-
sonous to human beings as well, the company
sells the product to professional exterminators
only, requiring that each purchaser show his or
her state exterminator's license when making a
purchase. A shop owner, a licensed extermina-
tor, bought a large container of Term-Aid from
the company for use in his business. The con-
tainer bore a label that read: "Term-Aid. For
killing termites. Caution: This product is
intended for use by professional exterminators
only. Unauthorized use by any other persons
may be dangerous." The shop owner placed
the container on a shelf in his shop, where it
was discovered by an independent contractor
who the shop owner periodically hired to clean
his shop. Since the cleaner thought there were
termites in his house, he opened the container
and poured some of the chemical pellets into a
plastic bag that he then brought home. The
next day, the cleaner's three-year-old daughter
found the plastic bag containing the Term-Aid
pellets and ate some of them, becoming
seriously ill as a result. A statute in the
jurisdiction adopted the all-or-nothing rule of
contributory negligence.
In a negligence action by the girl against the
company, the company's most effective argu-
ment in defense would be that
(A) the cleaner was contributorily negligent.
(B) the shop owner's conduct was an inter-
vening cause of harm.
(C) the cleaner's conduct was an intervening
cause of harm.
(D) the company did not act unreasonably.
60. A warehouse owner was the owner of a ware-
house that was usually unattended at night. As
a result, burglars had broken in on several
occasions and had stolen valuable merchandise
from the warehouse. The warehouse owner
looked into the possibility of hiring a security
guard but decided that it would be too expen-
sive. Instead, he installed an explosive device
in the doorway, rigging it to explode if anyone
opened the door without first inserting a key
in a specially constructed slot. A burglar was
attempting to break into the warehouse own-
er's warehouse for the purpose of stealing
when the explosive device detonated while he
was trying to open the door. The burglar was
seriously injured in the explosion.
If the burglar is successful in an action against
the warehouse owner, it will most probably be
because the court finds that
(A) it was negligent for the warehouse owner
to install the explosive device, since it
was foreseeable that a person entering
on legitimate business might be injured
by it.
(B) the warehouse owner used excessive
force to defend his property, since the
explosive device was liable to inflict
serious or deadly injury.
(C) the use of a mechanical device is not per-
mitted in defense of property.
(D) the explosive device was just as likely to
injure an innocent bystander as a thief.
646 FINZ MULTISTATE METHOD
61. After living together for several months, a man
and his girlfriend began to argue frequently.
On Monday, after an argument, the man left
their apartment in anger, saying that he didn't
know when he was coming back. The girl-
friend changed the lock on the front door and
began advertising for a roommate. The follow-
ing Saturday, the girlfriend took all the man's
possessions, including his television set, which
was valued at $600, to a swap meet in hopes
of selling them. At the swap meet, she put up
a sign that said, "Moving. Everything Must Be
Sold Today."
A neighbor was browsing at the swap meet
when she saw the television set at the girl-
friend's booth. She asked whether it was in
good condition, and when the girlfriend said
that it was, she asked the price. The girlfriend
said, "$50." The neighbor immediately handed
the girlfriend the cash, placed the television in
her station wagon, and hurried home.
In an action by the man against the neighbor
for conversion, a court should find for
(A) the man, since the neighbor desired to
make the television her own, and did so.
(B) the man, since the price of $50 should
have made the neighbor aware that there
was something suspicious about the
sale.
(C) the neighbor, since it was reasonable for
her to believe that the girlfriend owned
the television set and that the price was
low because the girlfriend needed to sell
it in a hurry.
(D) the neighbor, since the television was not
in the man's possession when she
acquired it.
e plaintiff and the defendant lived on the
same street and worked in the same office, so
they formed a car pool, each driving his own
car on alternate days. One day while the
defendant was driving, the car in front of his
stopped suddenly and without warning. Since
the defendant had taken his eyes off the road
for a moment to look at the plaintiff, he was
unable to stop in time and collided with the
rear of the stopped car. The plaintiff was
injured as a result of the collision.
A statute in the jurisdiction provides that "No
person shall maintain an action for damages
resulting from negligence in the operation or
ownership of an automobile if said person was
a guest in said automobile at the time said
damages allegedly occurred." In an action by
the plaintiff against the defendant for damages
resulting from his injuries, which of the fol-
lowing arguments is most likely to result in a
judgment for the plaintiff?
(A) The fact that most drivers have insurance
makes the statute obsolete.
(B) The plaintiff was not a guest, since his
driving on alternate days was consider-
ation for the ride.
(C) The defendant's conduct was reckless and
therefore constituted aggravated negli-
gence, a lawsuit that is not prohibited by
the statute.
(D) Enforcement of the statute will leave the
plaintiff without a remedy.
The company is the manufacturer of a device
known as the Claw, which was designed for
use by professional rescuers in removing acci-
dent victims who have become pinned in auto-
mobiles. The Claw consists of power-scissors
which, when connected to a portable power-
pack, are strong enough to rapidly cut through
the metal of a car body. Because the Claw is
heavy and powerful, improper use of it could
result in serious harm to the user, as well as to
the person being rescued.
A fire department purchased a Claw from a
firefighter supply store. Subsequently, the fire
department was called to the scene of an acci-
dent in which a woman was trapped in her car.
The fire chief directed a volunteer firefighter
to use the Claw to free the woman from her
car, although he knew that the volunteer fire-
fighter had not been trained in its use.
TORTS QUESTIONS 647
The volunteer firefighter, who had never heard
of the Claw before, started to use the Claw.
However, due to a crack caused by a manufac-
turing defect, the Claw operated improperly,
injuring the firefighter. If the volunteer fire-
fighter institutes an action against the com-
pany, the company's most effective argument
in defense would be that
(A) it had acted reasonably in its marketing
and sale of the Claw.
(B) the firefighter supply store substantially
changed the Claw before selling it to the
fire department.
(C) the volunteer firefighter assumed the risk,
since he attempted to use the device
without proper training.
(D) the volunteer firefighter's attempt to use
the machine without training was an
independent intervening cause of harm
that broke the chain of proximate causa-
tion.
64. As a result of her neighbor's negligence, a
baker's shoulder and eye were both injured.
The baker went immediately to her eye doctor.
The eye doctor treated the injury to the bak-
er's eye but suggested that she see an orthope-
dist for treatment of her shoulder. The
following day, the baker visited an orthopedist,
who treated the baker's shoulder.
Because of negligent treatment by the eye doc-
tor, the baker's nose became infected, and
because of negligent treatment by the orthope-
dist, she lost the use of her elbow.
In an action by the baker against the eye doc-
tor, a court is most likely to hold the eye doc-
tor liable for
(A) nothing, since all the injuries were caused
by the negligence of the neighbor.
(B) the injury to the baker's nose, since it is
the only one of her injuries that was
caused by his negligence.
(C) the injury to the baker's nose and the
injury to the baker's elbow, since both
were caused by his negligence.
(D) the injuries to the baker's nose, shoulder,
and elbow, since all were caused by his
negligence.
65. After taking and failing the state bar exam on
12 different occasions, an attorney decided to
practice law without a license. Moving to a
small town, he hung out a shingle that pro-
claimed him to be an attorney and ran adver-
tisements in the local newspaper referring to
himself as an attorney. Having seen one of the
advertisements, a client retained the attorney
to defend him against a charge of driving
while intoxicated. The attorney attempted to
negotiate a plea to a lesser charge, but because
he was unable to do so, a trial was held. The
attorney appeared on behalf of the client, but
the client was convicted. During the course of
the trial, the district attorney became suspi-
cious of the attorney's credentials. Following
an investigation that the district attorney insti-
tuted, the attorney was charged with violation
of a state law that made it a crime to practice
law without a license. He pleaded guilty and
was sentenced to six months in jail.
If the client brings an action against the attor-
ney for negligence in the way the attorney
handled his defense, a court should find for
(A) the client, if the attorney failed to defend
him the way a reasonable attorney
would have done.
(B) the client, since it was unreasonable for
the attorney to practice law without a
license.
(C) the client, since the law that prohibited
practicing law without a license was
designed to keep unqualified persons
from practicing law.
(D) the attorney, since not even a licensed
attorney guarantees results.
66. The plaintiff was attending a nightclub at which
a hypnotist was performing. Before the show
began, a request was made for a volunteer to
648
FINZ MULTISTATE METHOD
67. A professor at City University has publicly
stated her opposition to the consumption of
alcohol. As a result, she is much in demand as
a lecturer on the evils of intoxication. One of
her slogans is, "When you drink, make it fruit
juice." The company, a producer of packaged
apple juice, invited the professor to participate
in a promotional apple-juice-drinking contest
that it was holding. The professor, who suc-
ceeded in drinking one and one-half quarts of
chilled apple juice without stopping for a
breath, was declared the winner.
The City University student newspaper ran a
photo of the professor holding the winner's
trophy over a caption that read, "City U Prof.
drinks them all under the table, winning first
prize at the company's drinking contest." A
story that described the fruit-juice drinking
contest in detail appeared on the same page as
the photo but some distance from it. The day
after the photo and story appeared, an organi-
zation that had hired the professor to lecture
on the evils of alcohol canceled its contract
with the professor because, after seeing the
photo and caption in the newspaper, some
members believed that the professor was a
drinker of alcohol.
If the professor sues the newspaper for defa-
mation, the court should instruct the jury that
the statements made by the newspaper in the
photo and caption were not defamatory if
(A) the reasonable person would have read
the story.
(B) the organization members who saw the
photo and caption did not read the story.
(C) a substantial group of respectable persons
would have read the story.
(D) the reasonable person would not have
read the story.
68. An athlete, a member of the United States
2002 Olympic team and a multiple gold medal
winner, appeared in a television commercial.
While films of his medal-winning perfor-
mances showed in the background, the athlete
ate a Power candy bar. He said that he had
assist the hypnotist with his act, and the plaintiff
volunteered. She was taken backstage to the
hypnotist's dressing room, where she and the
hypnotist had a conversation. Following their
conversation, the plaintiff agreed to participate
in the hypnotist's show. During the course of the
performance, the hypnotist attempted to
hypnotize the plaintiff on stage. He then touched
her skin with an electric cattle prod (a device that
produces an electric shock and is used for
handling stubborn cattle), causing her great pain
and discomfort.
The plaintiff subsequently instituted an action
against the hypnotist. In it, she alleged that he
committed various intentional torts against her
by touching her with the cattle prod. If one of
the following facts were established at the
trial, which one would be most helpful to the
plaintiff in responding to the hypnotist's
defense of consent?
(A) During the conversation in the hypno-
tist's dressing room, the hypnotist stated
that he was going to attempt to hypno-
tize the plaintiff on stage, he was usu-
ally successful in hypnotizing
volunteers, and if he was successful, the
cattle prod would cause her no discom-
fort.
(B) During the conversation in the hypnotist's
dressing room, the hypnotist promised
to pay her $100 for participating in the
show; he never did pay her; and, in fact,
when he promised that he would pay
her, he did not intend to do so.
(C) During the conversation in the hypnotist's
dressing room, the hypnotist stated that
the electric cattle prod produced a mild
electric shock that would cause no real
discomfort, when he knew that this was
not true.
(D) When the plaintiff consented to partici-
pating in the hypnotist's act, she did not
know that contact with the electric cattle
prod would result in great pain and dis-
comfort.
TORTS QUESTIONS 649
been eating Power candy bars for energy ever
since he was a child. He ended the commercial
by smiling and saying, "Who knows? Maybe
Power candy bars gave me the power to win."
The plaintiff purchased a case of 24 Power
candy bars after seeing the commercial several
times on television. After tasting one, however,
he found he did not like the flavor. If the
plaintiff brings an action against the athlete for
misrepresentation, which of the following
arguments will be most helpful in the athlete's
defense?
(A) The athlete is not in the business of sell-
ing Power candy bars.
(B) The script for the commercial was not
written by the athlete.
(C) The plaintiff was not in privity with the
athlete.
(D) The plaintiff has not sustained damage as
the result of a false assertion by the ath-
lete.
69. The breeder was a breeder of valuable thor-
oughbred racehorses. A demolition contractor
was hired by a builder to demolish a large
office building located a half-mile from the
breeder's farm. The demolition contractor was
using dynamite for that purpose. On Thursday,
the breeder telephoned the demolition contrac-
tor to complain that the sounds of the explo-
sions were frightening his animals. He said,
"If anything happens to my horses, I'm plan-
ning to hold you personally responsible." On
Friday, sounds of the explosions so frightened
one of the breeder's horses that she tried to
jump over a fence, injuring herself in the pro-
cess.
If the breeder institutes an action against the
demolition contractor on a strict liability
theory, which of the following would be the
demolition contractor's most effective argu-
ment in defense?
(A) The breeder's farm was not within the
foreseeable zone of danger.
(B) The possibility that noise will frighten
animals is not one of the risks that
makes blasting an ultra-hazardous activ-
ity.
(C) The demolition contractor used reason-
able care in setting off the blast.
(D) The demolition contractor was working
under contract to the builder.
70. The landlord was the owner of a small office
building. Her own office was located on the
ground floor of the building, the second floor
was leased to a company, and the third and
fourth floors were divided into smaller offices
that were rented to various tenants on a
month-to-month basis. Although the building
was equipped with an elevator, occupants of
the building frequently used a stairway over
which the landlord retained control. One day,
while one of the company's employees was
walking down the stairs from the second floor,
she cut her hand on a jagged part of the hand-
rail that ran alongside the stairs. She com-
menced an action against the landlord, alleging
that the handrail was jagged because of negli-
gence by the landlord.
Which of the following is an accurate state-
ment about the case of the injured employee
vs. the landlord?
(A) The company's employee was an invitee
since she was an employee of one of the
landlord's tenants.
(B) The company's employee was contribu-
torily (or comparatively) negligent if the
reasonable person in her situation would
have noticed the jagged condition of the
handrail and would have avoided being
injured by it.
(C) The company's employee was an invitee,
and she was contributorily (or compara-
tively) negligent if the reasonable person
in her situation would have noticed the
jagged condition of the handrail and
would have avoided being injured by it.
650 FINZ MULTISTATE METHOD
(D) The company's employee was neither an
invitee nor was she contributorily (or
comparatively) negligent.
71. A building inspector was employed by the city
to conduct periodic inspections of business
premises located in a territory to which she
was assigned. The instruction manual that the
city furnished to its inspectors contained
instructions on testing draperies for fire-
retardant properties. In large boldface letters,
the manual stated, "NEVER EXPOSE DRAP-
ERIES TO FLAME WHILE THEY ARE
HANGING IN PLACE."
One of the businesses in the building inspec-
tor's territory was a nightclub. On one of her
inspections of the nightclub, the building
inspector asked the manager of the business
whether the window draperies were fire-
retardant as required by the city's building
code. The manager responded that they were.
Although the building inspector was familiar
with the instructions in the manual, she was in
a hurry. Taking a cigarette lighter from her
pocket, she held its flame under one of the
draperies where it was hanging. The drapery
caught fire, which spread, completely destroy-
ing the building. A passerby was injured in
the fire.
If the passerby brings an action for damages
against the city on a theory of respondeat
superior, the passerby will
(A) lose, since the building inspector was
acting in violation of specific instruc-
tions from her employer.
(B) lose, if a building inspector's duties
involve the exercise of unsupervised dis-
cretion.
(C) win, if the building inspector was negli-
gent.
(D) win, whether or not the building inspec-
tor was negligent.
72. A statute provides that every motor vehicle
must be equipped with an ignition lock, and
that it shall be a misdemeanor for any person
to park a motor vehicle without locking it and
removing the ignition key. The defendant left
his car parked on a public street with the igni-
tion key in it, in violation of the statute. A
14- year-old boy saw the key in the ignition
and stole the car. While driving it, he struck
and injured the plaintiff. In an action by the
plaintiff against the defendant, the plaintiff
will
(A) win, if but only if it was unreasonable for
the defendant to leave his keys in the
ignition.
(B) win, if, but only if, the statute was
designed to prevent accidents involving
stolen cars.
(C) lose, unless the boy's intervention is held
to have been foreseeable.
(D) lose, if the boy's conduct is found to be
an intervention that proximately caused
the injury.
73. The state governor was attending a major
league baseball game when a member of the
home team hit a home run. The governor
jumped to his feet and cheered loudly, along
with the rest of the crowd. A freelance photog-
rapher took his picture while he was cheering.
When the photograph was developed, the pho-
tographer had it imprinted on targets. With toy
plastic darts, the photographer marketed them
under the name of "The Cheering Governor
Dart Board Game" and sold several thousand.
The governor sued the photographer for inva-
sion of privacy.
On which of the following theories is the gov-
ernor most likely to be successful in his action
against the photographer?
(A) Appropriation of identity.
(B) Public disclosure.
(C) Intrusion.
(D) False light.
74. A professor was disturbed by the fact that stu-
dents frequently left the room during her lec-
tures, so she instructed her teaching assistant
TORTS QUESTIONS 651
to lock the door of her classroom 10 minutes
after the class began and not to unlock it again
until 10 minutes before the class was sched-
uled to end. On Thursday, a student attended
the professor's four o'clock class. By five
minutes past four, the student was sound
asleep in his seat. At ten minutes past four, the
teaching assistant locked the classroom door as
instructed by the professor, unlocking it at ten
minutes to five. When the class ended at five,
the student, who had slept through the class,
was awakened by a classmate and left the
room. The classroom had been painted the
previous day with a paint to which the student
was allergic, although neither the professor,
the teaching assistant, nor the student knew
about it. As a result of his exposure to the
paint in the room, the student developed aller-
gic symptoms later that day that required hos-
pitalization.
If the student institutes an action for false
imprisonment against the professor, who
will win?
(A) The student, because his illness resulted
from the professor's intentional confine-
ment of him.
(B) The student, since a professor owes her
students a duty to refrain from exposing
them to unreasonable risks of foresee-
able harm.
(C) The professor, since she did not know
with substantial certainty that harm
would result from locking the door.
(D) The professor, since she did not confine
the student against his will.
75. The Lovers of God is a small religious sect
that had its origins in colonial America. Origi-
nally, members of the sect believed that physi-
cal acts of love were holy. During the 19th
century, they were prosecuted for engaging in
religious rituals that involved public nudity
and group sex. At the start of the 20th century,
the leaders of the sect revised its philosophy
and prohibited the sex acts that they had for-
merly encouraged. Some non-members of the
sect continue to associate it with illicit sex and
continue to call its members "Makers," a term
coined by 19th-century journalists who cam-
paigned against the sect.
A minister ordained in the Church of Love, a
religious organization that is not associated in
any way with the Lovers, delivered the bene-
diction at the year's first meeting of the Town
Council of Smallville. The following day, the
Smallville Globe, a daily newspaper, printed an
article about the meeting. The article referred
to the minister as "a minister of the Church of
Love, better known as the Makers (Lovers of
God)." The minister instituted an action
against the Smallville Globe, alleging that the
reference to him as a minister of "the Makers
(Lovers of God)" was defamatory.
In his lawsuit, the minister must prove that the
Smallville Globe
(A) knew, or that the reasonable publisher
would have known, that the minister
was not affiliated with the Lovers of
God.
entertained serious doubts about whether
or not the minister was affiliated with
the Lovers of God.
knew that "the Makers (Lovers of God)"
were associated with shame or disgrace
in the minds of some readers.
made the statement, but the minister is
not required to prove fault since the
minister is not a public person.
76. The company was in the business of develop-
ing and manufacturing machinery used in
other industries. Having developed a zoobie
machine for shaping and stamping widgets, the
company manufactured and sold seven of them
to widget companies throughout the United
States. One of the zoobie machines manufac-
tured by the company was sold to the First
Widget Company, which used it without prob-
lems for three years. At the end of that time,
however, First redesigned its widgets. Since
the zoobie machine that it had purchased from
the company was inadequate for the produc-
tion of First's improved widget, First sold the
652 FINZ MULTISTATE METHOD
machine to Second, a company specializing in
selling products which, since they were
slightly out of date, could be produced and
sold at low prices.
The company learned that the finnegan pins in
its zoobie machines tended to wear out after
three or four years, making the machines dan-
gerous. It contacted the First Widget Company,
offering to replace the worn part for $1,000,
which was what the repair would cost the
company to make. When First advised the
company that the machine had been sold to
Second, the company contacted Second and
made the same offer. Because Second did not
want to spend the money, however, it refused
the company's offer. Two months later, a Sec-
ond employee was injured when the worn part
in the zoobie machine caused it to explode.
The employee instituted an action against the
company on a theory of strict liability in tort.
The jury specifically found that the finnegan
pin made the zoobie machine defective when
sold by the company to First, and that it had
not been substantially changed since then. The
jury should find in favor of
the employee, only if the employee's
compensation statutes prevent her from
suing her employer.
the employee, if the defect in the zoobie
machine was a proximate cause of her
injury.
the company, if the machine had been
removed from the stream of commerce
when sold by First to Second.
the company, only if Second's refusal to
spend $1,000 to repair the machine was
unreasonable.
77. A driver was driving her automobile on Coun-
try Road in the rain when she rounded a bend
and saw a cow standing directly in her path.
She immediately jammed on her brakes and
pulled the steering wheel to the right in an
attempt to avoid striking the cow. As a result,
she lost control of her car, which skidded off
the road and into the homeowner's yard. The
homeowner, who was in the process of install-
ing an automatic watering system, had dug a
trench across the yard for pipes. When the
wheels of the driver's car hit the trench, the
car stopped abruptly, throwing the driver for-
ward into the windshield and causing her to be
injured.
In an action by the driver against the home-
owner for negligence, will a court decide that
the homeowner owed the driver a duty of rea-
sonable care?
(A) Yes, if it was foreseeable that persons
driving on Country Road might lose
control of their vehicles and skid into
the homeowner's yard.
(B) Yes, if, but only if, the cow was in the
road because of some conduct by the
homeowner.
(C) No, because it was not unreasonable for
the homeowner to dig a trench on his
own land.
(D) No, because the driver was a trespasser.
78. A carpenter who was building a house on his
own property had posted a sign that said, "No
Trespassing." He was working on the frame-
work of his roof when he found that he had
brought the wrong hammer onto the roof with
him. Without looking to see if anyone was
around, he tossed the hammer to the ground,
shouting, "Heads up!"
A truck driver was assigned to deliver lumber
on the street where the carpenter was building
the house. The carpenter had not ordered lum-
ber, but when the truck driver saw the carpen-
ter working on the roof of an unfinished
house, he incorrectly assumed that the carpen-
ter was the person to whom he was supposed
to deliver the lumber. He parked his truck at
the curb and was walking across the carpen-
ter's property toward the unfinished house to
talk to the carpenter about the delivery when
he was struck in the head by the hammer
thrown by the carpenter. The truck driver cried
TORTS QUESTIONS 653
out in pain and then fell to the ground, uncon-
scious and bleeding. The carpenter saw it hap-
pen, but he merely shrugged and continued
working.
A moment later, a passerby who had seen what
happened called an ambulance. When it
arrived, the truck driver was still unconscious.
The ambulance driver loaded the truck driver
into the ambulance and began driving to the
hospital. Because of the ambulance driver's
negligent driving, the ambulance struck a pole.
The truck driver was killed in the crash.
The representative of the truck driver's estate
instituted an appropriate action against the
carpenter, alleging that the carpenter's failure to
call for medical assistance after he saw the ham-
mer strike the truck driver was negligence.
Which of the following comments is most ac-
curate regarding that allegation?
(A) The carpenter owed the truck driver no
duty to call for help if the truck driver
was a trespasser.
(B) The truck driver's estate is entitled to
punitive (exemplary) damages if the
carpenter was substantially certain that
there was a possibility of harm resulting
from his failure to act.
(C) The carpenter's failure to call for medical
aid was not a factual cause of harm to
the truck driver since someone did call a
moment later.
(D) the truck driver was an invitee since he
was a user of the public street who had
entered upon adjacent private land.
79. The company had been operating a soap fac-
tory in the county for 50 years. When the fac-
tory was first opened, the nearest residential
settlement was the town, six miles away.
Because the factory has been in existence for
50 years, county zoning ordinances were
drafted to allow its continued operation. In the
past 50 years, however, the town has expanded
in size. Now the edge of town is only a quar-
ter of a mile from the company's factory. On
days when the wind is blowing from the direc-
tion of the factory, residents of the town are
annoyed by the noxious odor emanating from
the factory chimneys. A homeowner, who
moved to the town three years ago, has asked
the town attorney to seek an injunction to pro-
hibit the company from emitting foul odors,
but the town attorney has refused.
If the homeowner sues the company for dam-
ages resulting from the odors on a theory of
public nuisance, which of the following will
be the company's most effective argument in
defense?
(A) The company's operation preceded the
growth of the town.
(B)
The homeowner came to the nuisance.
(C) The homeowner's damages are no differ-
ent from those of other residents of the
town.
(D) A lawful activity cannot constitute a pub-
lic nuisance.
80. The defendant and the plaintiff had been
friends for years and worked in the same
office. Ever since they were children, they had
enjoyed playing practical jokes on each other.
Frequently, they would spend hours together,
laughing about the tricks they had played on
each other. One day, planning to have some
fun with the plaintiff, the defendant bought a
large rubber spider from a toy store. Knowing
that the plaintiff was terrified of spiders, the
defendant came into work early and placed the
toy spider in the top drawer of the plaintiffs
desk. Later, when the plaintiff arrived at work,
he opened his top drawer to get out a letter
opener and saw the rubber spider. Believing it
to be real and terrified that it would bite him,
the plaintiff screamed in fear, fainted, and fell
to the floor. As he fell, he struck his head on
the corner of his desk, sustaining a serious
fracture of the skull.
If the plaintiff asserts a claim for assault
against the defendant for the injury that he
sustained in the fall, which of the following
arguments would be most effective in the
defendant's defense?
654 FINZ MULTISTATE METHOD
The plaintiff's fear of being bitten by a
spider was not apprehension of a bat-
tery.
The reasonable person in the plaintiff's
position would not have become appre-
hensive at the sight of a spider.
The plaintiff impliedly consented to the
prank by engaging in a course of practi-
cal joking with the defendant.
The defendant was not substantially cer-
tain that the plaintiff would be injured
as a result of the joke.
81. The plaintiff commenced an action against the
defendant, and proved the following:
The defendant and his friend were both sling-
shot enthusiasts known for the accuracy of
their aim. They were planning to compete
against each other in a slingshot tournament to
be held on Sunday. On Saturday, without con-
sulting the other, each went independently to
the woods outside of town to practice his or
her skill. Since not many people frequented
the area, the defendant and his friend were
both somewhat casual about their targets, each
shooting at anything that moved without prop-
erly checking to make sure of what they were
shooting at. The plaintiff, who had gone to the
woods to read in solitude, was struck by a
steel ball shot from one of the slingshots.
Since the defendant and his friend were using
the same kind of ammunition, it is impossible
to determine which of them fired the ball that
struck the plaintiff, but it is certain that one of
them did.
If the court finds for the defendant, it will
probably be for which one of the following
reasons?
(A) The defendant did not owe the plaintiff a
duty of reasonable care since not many
people frequented the area.
(B) There is no evidence that the defendant
acted unreasonably.
(C) The evidence does not establish that the
defendant's conduct was a factual cause
of the injury.
(D) Even if the defendant's conduct was a
factual cause of the injury, it is impos-
sible to tell whether it was a legal cause
of the injury.
82. Statutes in the state provide that persons under
the age of 20 years are incompetent to enter
into contracts, may not marry without the writ-
ten consent of their parents, may not lawfully
purchase alcoholic beverages, and are subject
to local curfew regulations. A 19-year-old girl
was fishing for pleasure from a pier in the
state when she accidentally struck a fisherman
in the eye with a fishhook on the end of her
line. The fisherman commenced a negligence
action against the girl. The trial court should
find that the girl was negligent
(A) if she failed to act like a reasonable
19-year-old with her experience and
intelligence, because under the laws of
the state, she is still a child.
(B) if she failed to act like a reasonable adult,
because fishing is an adult activity.
(C) if she failed to act like a reasonable adult,
because at 19 she is old enough to be
treated as an adult by the law of torts.
(D) because the risk of injury caused by her
use of the fishhook outweighs the utility
of fishing for pleasure.
83. The company manufactures several kinds of
cooked-fruit desserts, which are marketed in
packages labeled "Person Pleasers." Each
package consists of an aluminum can contain-
ing cooked fruit packed in syrup and a plastic
spoon. The aluminum can is equipped with an
"easy-open" lid that can be removed by pull-
ing an aluminum ring fastened to the top of
the can.
One morning on his way to work, a man pur-
chased a package of Person Pleasers from the
grocery store. Later that day, while eating
lunch, the man opened the package, removed
the lid from the aluminum can, and began
TORTS QUESTIONS 655
eating the contents with a spoon. After con-
suming more than half of the product, the man
noticed parts of a rat's tail mixed with the
cooked fruit.
If the man asserts a claim against the company
on the theory of strict liability in tort, which of
the following would be the man's most effec-
tive argument?
(A) The presence of a rat's tail was a defect
that made the product unreasonably dan-
gerous.
(B) The man was in horizontal privity with
the grocery store, and there is no need
for vertical privity.
(C) The labeling and packaging of Person
Pleasers implied a promise that the con-
tents of the package purchased by the
man were fit for human consumption.
(D) The doctrine of res ipso loquitur applies,
since the product was sold in a sealed
package.
84. The driver was driving her car north on Ocean
Boulevard when the car in front of hers
stopped suddenly to avoid striking a cat that
had run into the roadway. Since there were no
cars coming toward her, the driver swerved
over the centerline and into the southbound
lane. When she did so, she struck and injured
a nine-year-old boy who was walking a
bicycle south in the southbound lane. Because
the sun was in her eyes, the driver did not see
the boy until her car struck him.
Half an hour before the accident, the boy's
mother told the boy that she did not want him
riding his bicycle on Ocean Boulevard because
it was a heavily travelled roadway with no
sidewalks. She gave him permission, however,
to walk his bicycle carefully along the road
shoulder.
As a result of the accident, the boy sustained
brain damage that will make it impossible for
him to support, feed, or care for himself for
the rest of his life. The jurisdiction applies the
all-or-nothing rule of contributory negligence.
If the boy's mother asserts a negligence claim
against the driver for the medical bills that she
incurred as a result of the boy's injury, which
of the following may the driver assert in
defense?
(A) The accident resulted from the boy's neg-
ligence.
(B) The accident resulted from the boy's
mother's negligence.
(C) The accident resulted from both the boy's
and his mother's negligence.
(D) The driver cannot claim that either the
boy or his mother was negligent.
85. The defendant was towing a small travel-
trailer with his automobile when the hitch that
attached the trailer to the car broke, causing
the trailer to collide with the vehicle of the
plaintiff, which was parked at the curb. A stat-
ute in the jurisdiction provides that "No person
shall operate a motor vehicle or trailer on the
roads of this state unless said motor vehicle or
trailer is covered by a valid policy of liability
insurance." The defendant was in violation of
that statute in that he knew that his trailer was
not covered by a valid policy of liability insur-
ance at the time of the accident. Is his viola-
tion of statute relevant to the issue of
negligence in an action brought against him by
the plaintiff?
Yes, because the statute was designed to
protect the victims of automobile and
trailer accidents.
Yes, because the reasonable person does
not knowingly violate a statute.
No, because the law encourages the pur-
chase of automobile insurance and
therefore absolutely prohibits disclosure
to the jury about whether or not a
defendant was insured.
(D) No, because compliance with the statute
does not prevent automobile or trailer
accidents.
86. One night, police officers received a message
that a burglary was in progress at a grocery
656 FINZ MULTISTATE METHOD
store. Rushing to the location, they discovered
that the back door of the store was open.
Entering cautiously, they saw two burglars
hiding in the storage room. In the ensuing
attempt to make an arrest in the dark, the
officers knocked over several stacks of mer-
chandise, including cases of bottled soda-pop
manufactured by the company. This caused
minute cracks in all the bottles. The following
day, store employees cleaned up the mess,
restacking the cases of soda-pop. Approxi-
mately one week later, six of the cases were
placed on display in the store. A woman pur-
chased one of the bottles from these six cases
but did not notice the minute crack in it.
That evening, the woman was placing the
bottle on the dinner table when the bottle
exploded because of the crack in it, sending
fragments of glass flying in all directions.
Both the woman and her daughter were cut by
the flying glass.
In an action by the woman against the com-
pany, may she successfully rely on the doc-
trine of res ipsa loquitur?
(A) Yes, because it applies in exploding
bottle cases.
(B) Yes, because the company was in exclu-
sive control of the bottling process.
(C) No, because the bottles were knocked
over by the officers.
(D) No, because the bottles were not in the
company's possession at the time the
woman's injury occurred.
87. After several neighboring stores had been bur-
glarized, a store owner decided to take steps to
protect her own grocery store against burglars.
She purchased an alarm bell and wired it to
the store cash register so that it would make a
loud noise if the register was forced open. In
addition, she connected a canister of X-Eleven
gas to the system so that as the alarm went
off, the gas would be discharged into the area
around the cash register. The store owner had
read a government report that indicated that
X-Eleven had no harmful effects, but that a
person exposed to it would become tempo-
rarily disoriented. She hoped that if a burglar
attempted to steal from her cash register, the
combination of disorientation produced by the
gas and the loud noise produced by the bell
would frighten the burglar away. That night, a
burglar broke into the store owner's store.
When he attempted to open her cash register,
the alarm bell began to sound and the canister
discharged X-Eleven gas into the area. The
burglar became frightened and ran away, but
because he was unusually sensitive to the
ingredients of X-Eleven gas, exposure to it
permanently damaged his vision.
If the burglar asserts a claim against the store
owner for his damages, the court should find
for
(A) the burglar, if the alarm system created
by the store owner constituted a trap.
(B) the burglar, because a human being's
vision is of greater value than mere
property.
(C) the store owner, because no duty is owed
to a trespasser who enters for the pur-
pose of committing a crime.
(D) the store owner, if she used reasonable
force to defend her property.
88. One day, while a well-known collector was
visiting the dealer's art gallery, the dealer
showed him a new painting called The Petti-
coats that she had received that day.
"The artist didn't sign it," the dealer said. "But
I'm sure it was painted by Degas. That would
make it worth at least $250,000."
The collector answered, "It's by Degas, all
right. It's worth every cent you're asking. But
I already have several paintings by Degas in
my collection, and I don't need another."
The buyer, who was browsing in the dealer's
gallery, overheard the conversation between
the collector and the dealer. The buyer knew
very little about art, but had just inherited a
large sum of money. Because he knew that the
TORTS QUESTIONS
657
collector and the dealer were art experts, he
believed what he heard them saying. After the
collector left the gallery, the buyer asked the
dealer if she would accept $200,000 for The
Petticoats. The dealer said that she would not
take anything less than $250,000. After nego-
tiation, the buyer purchased it for $225,000.
The buyer subsequently learned that The Petti-
coats had not been painted by Degas and was
worth only $600.
If the buyer asserts a tort claim for misrepre-
sentation against the dealer, which of the fol-
lowing would be the dealer's most effective
argument in defense?
(A) A statement of opinion cannot be con-
strued as a misrepresentation, since
there is no such thing as a false idea.
(B) The buyer did not sustain damage as a
result of his reliance on a statement by
the dealer.
(C) The dealer did not know that the buyer
would rely on the statements that she
made to the collector.
(D) The value of any work of art is a matter
of opinion.
89. As a joke, the defendant knocked on the plain-
tiffs door wearing a police officer's uniform
that he had rented from a costume shop. When
the plaintiff came to the door, the defendant
told her that her husband had just been killed
in a highway accident, and that she would
have to come with him to claim the body. The
plaintiff, who recognized the defendant and
knew that he was not a police officer,
slammed the door in his face and told him to
leave her alone. She was outraged at his
attempt to play such a joke on her, but she
sustained no physical or mental injury.
If the plaintiff asserts a claim against the
defendant for intentional infliction of emo-
tional distress, the court should find for
(A) the plaintiff, because the defendant's con-
duct exceeded all bounds normally tol-
erated by decent society.
(B) the plaintiff, because the defendant's con-
duct was calculated to cause severe
mental suffering.
(C) the defendant, because his intention was
merely to play a joke on the plaintiff.
(D) the defendant, because the plaintiff sus-
tained no physical or mental injury as a
result of the defendant's conduct.
90. Which of the following most correctly states
the duty owed to customers by a druggist who
dispenses prescription drugs?
(A) To know all the harmful side effects of
the drugs being dispensed.
(B) To warn of all the harmful side effects of
the drugs being dispensed.
(C) To sell only those drugs that are not
defective.
(D) To make whatever inspection of the drugs
is reasonable before dispensing them.
91. A man and his friend were members of the
same golf club and frequently played golf
together. One day, after meeting in the club's
cocktail lounge, they argued about which of
them could hit a golf ball farthest. To settle the
dispute, they agreed to a contest and wager.
Each handed $100 to a caddie who offered to
hold the stakes. Their understanding was that
each would hit a single golf ball, and that the
one whose ball traveled the greatest distance
would win the bet. The man and his friend
went together to the club's driving range. Both
struck their golf balls at the same time. A
moment later, they heard a shout coming from
the far end of the driving range. Upon investi-
gating, they found the plaintiff, another mem-
ber of the club, lying unconscious on the
ground with a single lump on his head. Lying
beside him were the balls driven by the man
and his friend. The plaintiff subsequently
asserted a claim for damages against the man
and his friend. He succeeded in proving that
the ball that struck him had been driven by
one of them, but he was unable to show which
one. The court found that both the man and
658 FINZ MULTISTATE METHOD
his friend had acted negligently, and that they
were involved in a concert of action.
Which of the following statements is most
correct about the relationship of the parties?
Either the man or his friend may avoid
liability by proving that his ball was not
the one that struck the plaintiff.
Neither the man's nor his friend's con-
duct was a factual cause of harm
because each induced the other's con-
duct to be a substantial factor in produc-
ing the plaintiff's injury.
The man's conduct and his friend's con-
duct were legal causes of harm, but nei-
ther was a factual cause of harm.
The man and his friend may each be held
vicariously liable for the other's con-
duct.
92. A company is the manufacturer of a drug
known as HLP, which is used in the treatment
of certain cancers. Because HLP induces an
allergic reaction in about 10 percent of the
people treated with it, the company has sent
every doctor in the United States a brochure
describing the possible side effects and sug-
gesting methods for determining in advance
whether a patient is allergic to the drug. In
addition, the company has published warnings
about the drug in The Physician's Medical
Guide, a book that describes the effects of all
prescription drugs sold in the United States
and which is part of the library of virtually
every practicing physician. A patient was
being treated by a doctor for cancer of the
epiframmis gland. In the course of treatment,
the doctor prescribed the use of HLP. Although
the doctor had read the company brochure and
was aware of the possibility of an allergic
reaction, she did not take any steps to deter-
mine whether the patient was allergic to the
drug. Because the patient was allergic to HLP,
its use caused her to lose the sight of one of
her eyes.
The patient subsequently retained an attorney
to commence a malpractice action against the
doctor for the damages that resulted from her
allergic reaction to HLP. Although the statute
of limitations on such an action fixed a period
of one year, more than one year passed before
the attorney commenced an action against the
doctor. As a result, no such action could ever
be brought. The patient eventually sued the
attorney, alleging that the attorney's failure to
bring the action on time was negligent.
Which one of the following additional facts or
inferences, if it was the only one true, would
be most effective as part of the attorney's
defense?
(A) The attorney had been admitted to the bar
only three weeks before being retained
by the patient.
(B) The attorney honestly believed that the
statutory period of limitations for the
commencement of medical malpractice
actions was two years.
(C) After discussing the case with the doc-
tor's attorney, the attorney came to the
conclusion that the patient's case against
the doctor was weak.
(D) Cancer of the epiframmis gland would
have led to the patient's death within a
few months if left untreated, and HLP
was the only drug available for its treat-
ment.
93. The defendant was an elderly man who lived
in a house with a swimming pool in the back-
yard. Although the defendant enjoyed swim-
ming in the pool, his age and physical
infirmity made him unable to clean or main-
tain the pool himself. Instead, he agreed to
allow his 14-year-old neighbor, the plaintiff, to
swim in the pool anytime she wanted without
notifying the defendant or asking his permis-
sion, in exchange for the plaintiff's services in
cleaning and maintaining the pool.
On Friday morning, the plaintiff thoroughly
cleaned the defendant's pool. Later that day,
the defendant drained all the water from the
pool and did not refill it. Saturday morning,
the plaintiff woke up early and decided to go
TORTS QUESTIONS 659
swimming in the defendant's pool. She put on
her bathing suit and went into the defendant's
yard, running onto the diving board of his
swimming pool and diving in without looking
first. The plaintiff was severely injured when
she fell to the concrete bottom of the empty
swimming pool.
If the plaintiff asserts a negligence claim for
her injuries against the defendant in a jurisdic-
tion that has a pure comparative negligence
statute, the court should find for
(A) the plaintiff, because the pool constituted
an attractive nuisance.
(B) the defendant, because the plaintiff was a
trespasser.
(C) the plaintiff, if it was unreasonable for
the defendant to drain the pool without
warning her.
(D) the defendant, if the reasonable person in
the plaintiff's position would have
known the risk of diving into an empty
swimming pool.
94. A company was the owner of electrical gener-
ating equipment located on a parcel of real
estate in the City of Haven. Electrical power
lines ran from the equipment to a 60-foot
power pole also located on the realty. Spikes
had been driven into the pole every 12 inches
for use as steps by persons climbing the pole
to service the wires fastened to it. Twelve feet
above the ground, a wooden platform was
mounted on the pole, with a hole in its center
so that a person climbing up the pole could
climb through the hole onto the platform.
The playground of Haven Grammar School
was directly adjacent to the company's prop-
erty, separated from it by a 6-foot wire mesh
fence. The company officials were aware that
a large gaping hole in this fence had existed
for approximately one year, and that children
frequently crept through the hole to play on
the company's property.
One morning, the plaintiff, a 12-year-old stu-
dent at the Haven Grammar School, entered
the company's property through the hole in the
fence. The plaintiff began climbing the spikes
that had been driven into the pole. When she
reached the wooden platform located 12 feet
aboveground, she put her head through the
hole in its center to see what was above it. Her
head came into contact with a high-voltage
wire that had been strung over the platform,
causing her to sustain serious injuries.
In a negligence action by the plaintiff against
the company, which one of the following addi-
tional facts or inferences, if it were the only
one true, would provide the company with its
most effective argument in defense?
The plaintiff entered the premises without
the company's permission.
To the company's knowledge, no child
had ever before attempted to climb the
pole.
The plaintiff was old enough to compre-
hend the dangers associated with an
attempt to climb the pole.
The fence that separated the company's
property from the schoolyard was
located completely on realty occupied
by the Haven Grammar School.
95. A company was a manufacturer of explosives.
Several cases of explosives that the company
had shipped to a buyer in another state were
being stored by a warehouse pending delivery.
While the explosives were there, the ware-
house facility was struck by lightning, causing
the explosives to explode. The cases contain-
ing the explosives did not bear any description
of their contents. If the warehouse employees
knew that the cases contained explosives, they
would have stored them in a way that would
have prevented the explosion. A homeowner
who sustained property damage as a result of
the explosion has asserted a claim against the
company.
Which of the following facts or inferences, if
it were the only one true, would provide the
company with its most effective argument in
defense?
660 FINZ MULTISTATE METHOD
(A) The company did not do anything unrea-
sonable or irresponsible in manufactur-
ing, packaging, or labeling its product.
(B) When the company shipped the cases of
explosives, they had been properly
labeled with firmly affixed labels identi-
fying their contents, but the labels had
somehow come off in transit.
(C) The company had assigned an employee
to make sure that all cases of explosives
shipped by the company were properly
labeled, but the employee had forgotten
to inspect this shipment.
(D) The storage of explosives by the ware-
house was an ultra-hazardous activity.
96. In which one of the following cases is the
defendant LEAST likely to be held liable for
battery?
(A) The defendant is a six-year-old boy who
shot the plaintiff with a bow and arrow
because he wanted to see if she would
shout when the arrow hit her.
(B) The defendant is an insane woman who
struck the plaintiff because she believed
the plaintiff to be a horse that was
attacking her.
(C) The defendant is a man who was on a
date with the plaintiff, and who sud-
denly took her into his arms and kissed
her because he believed that she wanted
to be overwhelmed by his passion.
(D) The defendant is a mentally disabled
adult who threw a stone at the plaintiff
and struck her with it because he
believed that the plaintiff was going to
hurt him.
97. During Jimmy James's 70-year career in the
entertainment business, the comedian's trade-
mark was always a cigar that he clenched
between his teeth or held in his hand while
delivering his jokes. As part of an interview on
a television show, the interviewer asked the
comedian whether he really smoked cigars.
The comedian replied, "Sure. I always smoke
Georgia Cigars. They're the best cigars made."
The following day, Georgia Cigar Company,
the manufacturer of Georgia Cigars, placed
several advertisements in newspapers. All the
advertisements said, "Jimmy James says
Georgia Cigars are the best cigars made. He
always smokes Georgia Cigars, and you
should too."
If the comedian asserts a claim against
Georgia Cigar Company for invasion of pri-
vacy by misappropriation of identity, the court
should find for
(A) Georgia Cigar Company, because the
comedian had in fact made the state-
ment that appeared in the advertisement.
(B) Georgia Cigar Company, because the
advertisement constituted a constitution-
ally protected form of commercial
expression.
(C) the comedian, because when he made the
statement on the television show, it was
unforeseeable that Georgia Cigar Com-
pany would use it in its advertising.
(D) the comedian, because Georgia Cigar
Company used his name to sell its prod-
uct without his permission.
98. The defendant grew fruit trees on her farm
outside the village. In addition, she operated a
fruit store in the village. Every day during the
harvest season, in a trailer that she towed with
her pickup truck, she hauled fresh fruit from
her orchards to her store. One day, as she was
towing the trailer filled with fruit up a hill on
her way to the village, the hitch that fastened
the trailer to the pickup truck failed, permitting
the trailer to break loose and roll down the
hill, striking and damaging the home of the
plaintiff. Subsequent investigation revealed
that the hitch failed because one of its parts
was made of defective steel.
If the plaintiff asserts a claim against the
defendant for damage to his house, the court's
decision is most likely to turn on whether
(A) the defendant acted reasonably.
TORTS QUESTIONS 661
(B) the hitch was defective in manufacture
or in design.
(C) the defendant was a merchant.
(D) the plaintiff could have foreseen the
damage.
99. The pilot was a helicopter pilot employed by a
radio station as a traffic reporter. One day,
while flying in his helicopter, he hovered over
the home of a woman. Using powerful binocu-
lars, he looked into her window to watch her
while she was exercising in the nude. If the
woman institutes an action against him, which
of the following facts or inferences must she
establish to make out a prima facie case of
trespass to land?
(A) The altitude at which the pilot hovered
over her house.
(B) Damage to her land, or to her right to
enjoy it, that resulted from the pilot's
conduct.
(C) That she had a reasonable expectation of
privacy while exercising nude in her
own home.
(D) That she was in lawful possession of the
premises at the time that the pilot hov-
ered over her house.
100. When a woman discovered that her car had
been stolen, she reported the theft to the
police. Then, while she was walking home
from the police station, she saw her car in a
homeowner's driveway, where the person
who stole it had abandoned it after using it in
a bank robbery. When she began walking
toward the automobile, the homeowner ran
out of his house shouting, "Hey, you! Where
do you think you're going?" The woman
explained that she was attempting to retrieve
her car, but the homeowner pushed her, say-
ing, "Get off my land." The woman, who
sustained no physical or mental injury as a
result of the homeowner's contact with her,
got into her car and drove it away. The
woman subsequently commenced a battery
action against the homeowner. If, in response
to the woman's claim, the homeowner asserts
the privilege to defend realty, the court
should find for
(A) the homeowner, because the woman was
not in hot pursuit of her car when she
entered the homeowner's realty.
(B) the homeowner, because the woman was
not injured as a result of his contact
with her.
(C) the woman, because force is never per-
mitted in defense of realty.
(D) the woman, because she was privileged
to enter and retake her automobile.
101. A husband asserted a claim against a railroad
company employee, alleging that statements
made by the employee were misrepresenta-
tions. Attorneys for both parties agreed to the
following facts:
The husband's wife died when she jumped in
front of a train owned by the railroad. Two
weeks later, the railroad employee contacted
the husband. The employee said that although
the railroad was not legally responsible for the
wife's death, the railroad was willing to pay
$1,000 in full settlement of all claims arising
from the wife's death. When the husband said
he wanted to speak with an attorney, the
employee told him that if an attorney got
involved, the railroad would not pay anything
because the husband "had no legal claim." The
husband doubted that the employee was telling
the truth, so he consulted with an attorney. The
attorney didn't think the husband had a claim
and declined representation. Consequently, the
husband accepted the $1,000 and executed a
general release. The husband then retained
another attorney and instituted a wrongful
death action against the railroad. The court
dismissed, citing the release.
Which of the following additional facts must
the husband prove to establish a cause of
action for misrepresentation against the
employee?
662 FINZ MULTISTATE METHOD
(A) If the husband's wrongful death suit was
not dismissed, it would have resulted
in a judgment for the husband in
excess of $1,000.
(B) When the employee made the statements
to the husband, the employee knew or
should have known that the statements
were false.
(C) The husband's wrongful death suit
would have resulted in a judgment for
the husband in excess of $1,000, and
the employee knew or should have
known the statements were false.
(D) The husband doesn't have to prove that
his lawsuit would have resulted in a
judgment in excess of $1,000, or that
the employee knew or should have
known his statements were false.
102. The company, a manufacturer of dog
whistles, operated a factory for that purpose.
The whistles manufactured by the company
issued a sound so high-pitched that it could
not be heard by human ears; only dogs could
hear it. For this reason, before leaving the
assembly line, each whistle was tested by a
machine that blew air through it and metered
the sound that it made. After the company's
factory had been in operation for 15 years,
the breeder moved onto the adjoining realty
and began operating a kennel. The breeder
bred and raised pedigreed dogs and boarded
customers' dogs as part of his business. Two
weeks after moving onto the realty, the
breeder discovered that the dogs in his kennel
were being disturbed by the testing of dog
whistles in the company's factory. He wrote
the company a letter advising it that the com-
pany's operation was making it impossible
for the breeder to remain in business, and
demanding that the company change its
methods so that the sounds of the whistles
would not upset the breeder's dogs. When the
company refused, the breeder commenced a
private nuisance action against it. Which of
the following would be the company's most
effective argument in defense against the
breeder's claim?
(A) The operation of a dog-whistle factory
is a lawful business.
(B) The breeder came to the nuisance.
(C) The company did not intend to cause
harm to the breeder or to the breeder's
business.
(D) The breeder's damage resulted from the
fact that the breeder was making an
unusually sensitive use of the land.
103. The plaintiff purchased a bottle of dishwash-
ing detergent from the defendant, a self-
service supermarket. The plaintiff selected the
product from the defendant's shelves, carried
it to a checkout counter, and paid the cashier.
The plaintiff then placed the bottle in a bag
furnished by the defendant and carried it
home. The product purchased by the plaintiff
was manufactured by a local company. After
using the product for washing dishes, the
plaintiff experienced a serious rash on his
hands and wrists as the result of an allergic
reaction to a chemical in the product.
If the plaintiff asserts a claim against the
defendant for breach of express warranty, a
court should find for
(A) the plaintiff, if the label stated that the
product would not harm the skin of a
user.
(B) the plaintiff, if the product was unfit for
ordinary use.
(C) the defendant, if the plaintiff's injury
resulted from reliance on a statement
that the company caused to be printed
on the label of its product.
(D) the defendant, if no employee of the
defendant knew what statements were
contained on the company's detergent
label.
104. The defendant bought a new sailboat,
although he had never been on one before.
When he purchased the boat, the salesman
told him to be sure to get boating instruction
before attempting to use the boat because this
particular model required considerable skill
TORTS QUESTIONS 663
to operate. Although the defendant had not
received any instruction at all, and although
he heard a weather report that warned of
severe storms, he decided to take the boat out
for a test sail by himself. A few minutes after
he left the dock with his boat, the storm
struck, causing high and dangerous waves.
Fearful that the defendant would be killed at
sea, the defendant's wife stood crying on the
shore. The plaintiff, an experienced sailor
who knew the defendant and the defendant's
wife, heard the defendant's wife crying about
her husband's predicament. Without saying
anything to the defendant's wife, the plaintiff
went out in his own boat to look for the
defendant. The defendant returned unhurt an
hour later, but the plaintiff's boat capsized in
the storm, severely damaging his boat and
causing the plaintiff to sustain injury.
If the plaintiff asserts a claim against the
defendant for the damage that he sustained,
the court should find for
(A) the plaintiff, if his damage resulted from
the defendant's failure to act reason-
ably.
(B) the plaintiff, because a rescuer is entitled
to indemnity from the person whom he
or she was attempting to rescue.
(C) the defendant, because the plaintiff was
an officious intermeddler.
(D) the defendant, unless the defendant was
aware that the plaintiff would attempt
to rescue him.
105. The defendant was driving to visit her fianc,
who was staying in Smallville, about 50
miles away. Before she left, her friend asked
her to deliver a small package to someone in
Smallville. The package contained a bottle of
caustic chemicals. Because she was afraid
that the defendant would refuse to carry it if
she knew its contents, the friend wrapped the
package in brown paper and did not tell the
defendant what was in it. The defendant
placed the package in the glove compartment
of her car and began driving to Smallville.
Along the way, the defendant saw the plain-
tiff hitchhiking by the side of the road. Since
they had gone to high school together, the
defendant offered the plaintiff a ride. While
the plaintiff was sitting in the front seat
beside the defendant, the package in the
glove compartment began to leak, dripping
liquid onto the plaintiff's trousers. Without
saying anything to the defendant, the plaintiff
opened the glove compartment and removed
the wet package. As soon as the caustic liq-
uid touched the plaintiff's hand, it burned his
skin severely.
If the plaintiff commences a negligence
action against the defendant in a jurisdiction
that has no automobile guest statute and that
applies the all-or-nothing rule of contributory
negligence, which of the following would be
the defendant's most effective argument in
defense?
(A) The plaintiff was a mere licensee and
was entitled only to a warning of those
conditions that the defendant knew
were dangerous.
(B) The defendant could not have known or
anticipated that the contents of the
package would cause harm to a passen-
ger in her car.
(C) The plaintiff was contributorily negli-
gent in touching the wet package.
(D) The plaintiff assumed the risk of injury
resulting from contact with the wet
package.
106. The plaintiff, a photographer's model,
decided to have a rosebud tattooed on her
shoulder in the hope that it would increase
the demand for and the value of her model-
ing services. She went to the defendant, a
tattoo artist, for that purpose. After the defen-
dant explained that tattooing involved the
insertion of needles into the skin and was
therefore a painful process, the plaintiff
selected the tattoo that she wanted and told
the defendant to proceed. While the defen-
dant was tattooing the plaintiff's shoulder, the
tattoo needle broke off in the plaintiff's skin,
injuring the plaintiff. If the plaintiff asserts a
664 FINZ MULTISTATE METHOD
strict liability claim against the defendant on
the ground that the tattoo needle that the
defendant used was defective, the defendant's
most effective argument in defense would be
that
(A) the defendant did not sell the needle to
the plaintiff.
(B) the defendant was not the manufacturer
of the needle and therefore had no con-
trol over its quality.
(C) the plaintiff assumed the risk of injury.
(D) a tattoo needle is not an inherently dan-
gerous product.
107. A walker enjoyed walking vigorously in the
hours before sunrise, and he was doing so
when a police officer drove by in a patrol car.
When the policeman saw the walker hurrying
down the street in the early morning dark-
ness, he pulled his car over to the curb and
ordered the walker to stop and identify him-
self. The walker showed the policeman his
license, told him that he lived only a few
blocks away, and explained that he was just
taking a walk. When the policeman told the
walker to get into the back of the patrol car,
the walker asked whether he was under
arrest. The policeman replied, "No, but if you
know what's good for you, you'll get into the
car and shut up while I decide what to do
with you." The walker got into the car and
sat quietly in the backseat with the door open
while the policeman called the walker's
description in to police headquarters over the
radio. About 15 minutes later, satisfied that
the walker was not wanted for violating any
law, the policeman told him that he could go.
If the walker asserts a claim against the
policeman for false imprisonment, the court
should find for
(A) the policeman, if the rear door of the
policeman's patrol car remained open
all the time that the walker sat in the
car.
(B) the policeman, because the walker did
not object to sitting in the patrol car.
(C) the walker, if the language used by the
policeman induced the walker to obey
the policeman's order.
(D) the walker, only if he sustained damage
as a result of his detention by the
policeman.
108. Because he was driving in an unreasonable
manner, a driver's truck collided with a
power pole on Main Street. The power pole
fell down as a result of the impact, causing
electrical power to fail in the operating room
of Merced Hospital on Broad Street, two
blocks away. At the time of the power failure,
a patient was undergoing facial surgery in the
Merced Hospital operating room. The hospi-
tal's emergency generator went on automati-
cally, supplying enough electrical power to
light the operating room dimly. The doctor
who was operating on the patient was able to
complete the surgery on the patient's face,
but the operation left the patient with perma-
nent and disfiguring scars. If the power had
not failed, the doctor would have been able
to prevent the scarring. If the patient asserts a
claim for negligence against the driver, which
of the following additional facts or infer-
ences, if it were the only one true, would
provide the driver with his most effective
defense?
(A) The reasonable surgeon in the doctor's
position would not have proceeded
with the operation while the operating
room was dimly lit by the hospital's
emergency generator.
(B) The reasonable person in the driver's
position would not have anticipated
that driving a truck on Main Street
would affect any person at Merced
Hospital.
(C) The doctor was guilty of aggravated
negligence in continuing to operate on
the patient under the circumstances
then existing.
(D) The patient's scarring was caused by the
conduct of the doctor.
TORTS QUESTIONS 665
109. The Leopards and the Sharks were major
league baseball teams headquartered in the
city. The plaintiff and the defendant were
sportswriters who wrote for competing news-
papers in the city. Because most of the plain-
tiffs articles praised the Leopards, and most
of the defendant's articles praised the Sharks,
a rivalry developed between the plaintiff and
the defendant. One of the defendant's recent
columns contained the following statement:
The plaintiff's team can't play ball,
and the plaintiff can't write his way
out of a paper bag. The only thing
more boring than reading the plain-
tiff s stuff is reading it while
watching the Leopards play.
If the plaintiff commences an action for defa-
mation against the defendant, which of the
following would be the defendant's most
effective argument in defense?
(A) The plaintiff is a public figure.
(B) The statements made by the defendant
were expressions of opinion.
(C) The defendant's occupation makes him
a media defendant.
(D) The defendant's statements were privi-
leged by the defense of competition.
110. A pilot was a commercial pilot who operated
a package air-delivery service. Having been
hired to deliver a parcel to an airport located
300 miles away, he had his plane filled with
fuel supplied by an oil company. The fuel
that was put into the pilot's fuel tank had
been contaminated before leaving the oil
company's refinery, but neither the pilot nor
the oil company knew about the contamina-
tion. After the pilot had flown 100 miles from
the airport, the contaminants in the fuel
caused his engine to fail. The pilot looked for
a place to make an emergency landing and
chose the parking lot of an art museum
because it was the only level land in the
vicinity. The art museum housed a rare and
valuable collection of art.
The pilot succeeded in landing in the parking
lot without causing any damage. If the art
museum asserts a claim against the pilot for
trespass to land, which of the following argu-
ments would be most effective for the pilot's
defense?
(A) The engine failure that resulted from
contaminated fuel was unforeseeable.
(B) The pilot did not intend to enter the
realty of the art museum.
(C) Landing on the parking lot of the art
museum was reasonable considering
the risk to the pilot and his airplane.
(D) The accident was caused by a defect in
the product furnished by the oil com-
pany.
At 9 A.M., a man parked his car on a road in
front of the play yard of the elementary
school. At the time that he parked the car, the
man knew that he was violating a statute that
prohibited parking within two blocks of any
elementary school. At 10 A.M. on the same
day, because she was driving at an unreason-
ably fast rate of speed, a woman lost control
of her car and struck the man's parked
vehicle. The impact caused a passenger in the
woman's car to be thrown against the wind-
shield, severely cutting her face and rendering
her unconscious. If the man's car had not
been parked where it was, the woman would
have collided with a six-foot concrete wall
that surrounded the school play yard.
If the passenger asserts a negligence claim
against the man, which of the following addi-
tional facts or inferences, if it was the only
one true, would be most likely to lead to a
judgment for the man?
(A) The statute that prohibited parking
within two blocks of any elementary
school was designed to protect school-
children.
(B) The accident would not have occurred if
the woman had not been operating her
vehicle in an unreasonable manner.
666 FINZ MULTISTATE METHOD
(C) If the woman's car had hit the concrete
wall, the passenger would have sus-
tained injuries as serious as those sus-
tained in the collision with the man's
car.
(D) The woman's unreasonable driving was
an intervening cause of harm.
112. At the trial of The Plaintiff v. Able and
Baker, the jury found that the plaintiff was
damaged to the extent of $100,000. The jury
further found that the plaintiff's damage was
caused 20 percent by the plaintiff's negli-
gence, 40 percent by Able's negligence, and
40 percent by Baker's negligence. The juris-
diction had a statute that read as follows:
In a negligence action, no plaintiff
shall be barred from recovery
because of that plaintiff's contribu-
tory negligence, but such plaintiff's
recovery shall be diminished in pro-
portion to plaintiff's own fault.
The court held that Able and Baker were
jointly and severally liable for the plaintiff's
damage and entered judgment for the plaintiff
consistent with the jury's verdict.
Able became insolvent following the entry of
judgment. How much money is the plaintiff
entitled to collect from Baker?
(A) $100,000.
(B) $80,000 ($100,000 less 20 percent).
(C) $40,000 (40 percent of $100,000).
(D) None.
113. While waiting for a bus, a man decided to go
into Joe's Bar to use the public phone. One
of the man's neighbors was seated at the bar
when the man entered. Although the man
realized that his neighbor was drunk, the man
asked the neighbor for a ride home. The
neighbor agreed and left with the man at
once. Because he was drunk, the neighbor
lost control of his car and collided with a car
driven by another driver, injuring the other
driver and the man and damaging the other
driver's car.
The other driver asserted a negligence claim
against the man for damages resulting from
the accident. The court should find for
the other driver, if the man's negligence
was a proximate cause of the other
driver's injuries.
the other driver, unless the man's con-
duct was a superseding cause of the
other driver's injuries.
the man, only if the man's conduct was
a concurring cause of the other driver's
injuries.
the man, because a passenger in an
automobile is under no obligation to
control the conduct of its driver.
114. The Historic Investor is a monthly publica-
tion of interest primarily to persons who deal
in the purchase and sale of historic buildings
as an investment. It is read by approximately
1,000 subscribers each month. An issue of the
Historic Investor contained an article about
the recent sale of Montebello, an old house
that had once been owned by a United States
president. The article stated that Montebello
had been purchased by the plaintiff for
$950,000. It described the plaintiff as a bank
president earning a salary of $100,000 per
year and stated that she had purchased
Montebello with part of the $1 million for-
tune that she inherited from her mother.
Writers of the article had obtained informa-
tion about the sale of Montebello from public
records of the Office of the County Recorder.
Information about the plaintiff's employment
and salary had been obtained from public
records of the state Department of Banks, and
information about her inheritance from public
records of the state Probate Court. All state-
ments made in the article were accurate.
The plaintiff asserts a claim for invasion of
privacy against the Historic Investor on the
ground that the article publicly disclosed
TORTS QUESTIONS 667
facts about her salary and inheritance. The
court should find for
(A) the plaintiff, if most members of the
general public were unfamiliar with
records of the state Department of
Banks and the state Probate Court.
(B) the plaintiff, because there is no right to
publish information regarding the per-
sonal wealth of a person who is not a
public employee.
(C) the Historic Investor, because liability
cannot be imposed for publication of
the truth.
(D) the Historic Investor, because the plain-
tiff's salary and inheritance were a
matter of public record.
115. For many years, powdered cement used by a
factory was delivered in 90-pound sacks.
Recently, however, factory officials deter-
mined that it would be considerably less
expensive to purchase unbagged cement.
Since then, the factory has maintained a huge
bin containing unbagged powdered cement in
a yard outside its factory building. As a result
of the factory's change to unbagged cement,
the amount of cement dust in the air around
its factory has increased substantially.
A landowner lived in a cabin in the area.
After the factory began using unbagged
cement, cement dust from the factory's
operation continually settled on the cabin that
the landowner occupied. Although the dust
did no physical harm to the cabin or to the
landowner, the landowner complained to offi-
cials of the factory that the dust annoyed her.
Because the factory received no other com-
plaints from other area residents, however, it
continued using unbagged cement.
If the landowner wishes to assert a tort claim
against the factory on account of the cement
dust that continually settles on the cabin,
which of the following would be her most
effective theory?
(A) Invasion of privacy.
(B) Public nuisance.
(C) Trespass to land.
(D) Strict liability for engaging in an abnor-
mally dangerous activity.
116. An employee was driving a pickup truck
owned by the company when he collided
with an automobile owned and operated by a
driver. A passenger in the driver's car subse-
quently asserted a claim against the company,
the employee, and the driver for injuries sus-
tained in the accident. At trial, the jury fixed
the amount of the passenger's damages and
found that the employee was 40 percent at
fault, the driver was 60 percent at fault, and
the passenger was not at fault. It was also
found that the employee was acting within
the scope of his duties as an employee of the
company when the accident occurred. In issu-
ing a judgment for the passenger, the court
held that the employee and the driver were
jointly and severally liable for the passen-
ger's injuries and that the company was
vicariously liable for the employee's tort. The
jurisdiction had statutes that adopted pure
comparative negligence and recognized a
right of contribution between joint tortfeasors.
In enforcing the judgment, what portion of
her damages is the passenger entitled to col-
lect from the employee?
(A) 0%
(B) 40%
(C) 50%
(D) 100%
117. In a negligence action by the plaintiff against
Able and Baker, the court found that the
plaintiff's injuries were proximately caused
by the combined negligence of Able and
Baker and that Able and Baker were jointly
and severally liable to the plaintiff in the sum
of $100,000. The court also found that in
producing the plaintiff's injury, Able was 40
percent at fault and Baker was 60 percent at
fault. The jurisdiction has a statute recogniz-
ing the right of contribution between joint
668 FINZ MULTISTATE METHOD
tortfeasors, and that contribution shall be
based on apportionment of fault.
After the entry of judgment, the plaintiff suc-
ceeded in collecting $10,000 from Able.
Which of the following correctly states the
amount that the plaintiff is entitled to collect
from Baker?
(A) $50,000 (60 percent of $100,000 minus
$10,000 already collected).
(B) $60,000 (60 percent of $100,000).
(C) $90,000 ($100,000 minus $10,000
already collected).
(D) $100,000.
118. A biker was riding her bicycle in a reason-
able manner when she was struck by a car
negligently driven by a driver. As a result, the
biker was thrown to the ground, breaking her
left leg. A moment later, while lying in the
road, the biker was struck by a car negli-
gently driven by a second driver, breaking the
biker's right leg.
If the biker asserts a claim against the first
driver, will the first driver be held liable for
damages resulting from the biker's broken
RIGHT leg?
(A) No, because the second driver was
required to take the biker as he found
her.
(B) No, if the biker's right leg would not
have been broken but for the second
driver's negligence.
(C) Yes, if it was foreseeable that a person
lying in the roadway with a broken leg
would be struck by a second car.
(D) Yes, because the biker's right leg would
not have been broken but for the first
driver's negligence.
119. During the course of an argument about poli-
tics, the defendant slapped the plaintiff in the
face. Angry, the plaintiff pointed an unloaded
pistol at the defendant. The defendant imme-
diately drew a knife and stabbed the plaintiff
with it, injuring him severely. The plaintiff
subsequently asserted a battery claim against
the defendant. The only defense raised by the
defendant was self-defense.
In determining the defendant's liability to the
plaintiff, the most important issue that must
be decided is whether
(A) the use of a knife by the defendant con-
stituted deadly force.
(B) the defendant knew or should have
known that he could safely and easily
retreat without sustaining harm.
(C) the defendant was the initial aggressor.
(D) the plaintiff knew that his pistol was
unloaded.
120. As a result of a minor earthquake, the frame-
work of a building that the builder was erect-
ing on Third Street collapsed. When the
builder began the building, he knew that the
steel that he was using for that purpose was
of poor quality, but he decided to use it any-
way. If the steel had not been of poor quality,
the earthquake would not have caused the
building to collapse.
A driver was employed by a gas company to
operate a gasoline truck. She had parked the
truck on Third Street in front of the builder's
construction site moments before the earth-
quake. When the building collapsed, falling
debris struck the truck, causing it to rupture
and causing its cargo of gasoline to leak. A
stream of gasoline that leaked from the truck
flowed for three blocks until it reached Sixth
Street. There, unaware of the presence of
gasoline, a man tossed a lit cigarette into the
street. The cigarette caused the gasoline to
explode, injuring a woman standing nearby.
If the woman asserts a claim against the
builder, alleging that the builder's use of poor
quality steel in the construction of a building
on Third Street was negligent, the court
should find for
TORTS QUESTIONS 669
(A) the builder, if the presence of the gaso-
line truck was an intervening cause of
the woman's harm.
(B) the builder, because an earthquake is an
Act of God.
(C) the woman, because the earthquake was
a minor one.
(D) the woman, if the use of poor-quality
steel in the construction of a building
on Third Street created an apparent
danger to persons on Sixth Street.
121. The owner of a supermarket purchased an
automatic door-opener from its manufacturer.
The device included rubber step-plates that
were to be installed on the floor on both
sides of the door. When a person stepped on
one of the step-plates, the machine was
designed to swing the door away from him or
her. The manufacturer furnished detailed
installation instructions that contained the
following warning:
After installing step-plates, test by
stepping on one of them. If the
door swings toward you instead of
away from you, disconnect the
automatic door-opener at once and
make no further use of it until you
have called our hotline for further
directions.
The store owner hired a contractor to install
the automatic door-opener while the store
was closed for the night. The contractor read
the instructions furnished by the manufac-
turer but disregarded the above warning.
When he finished installing the device, he did
not test it by stepping on one of the step-
plates but advised the store's night manager
that the job was complete. The following
morning when the store opened, a customer
entered to purchase a particular brand of soft
drink. When he was attempting to leave, he
stepped on the step-plate that the contractor
had installed. Because of a short circuit in the
step-plate, the door swung toward him, strik-
ing and injuring his face.
The customer asserted a claim for his injuries
against the store owner. Which one of the
following additional facts or inferences, if it
was the only one true, would be most likely
to result in a judgment for the customer?
The customer's injury resulted from a
defect in the step-plate.
The contractor was not negligent in his
installation of the automatic door-
opener.
A reasonable inspection by the store
owner would have disclosed that the
door opened improperly.
The customer made a purchase from the
store owner before being struck by the
door.
122. The plaintiff, an adult, took his neighbor's
seven-year-old son to see the circus. During
the show, many children left their seats to
watch the performance from the edge of the
area on which it took place. The boy did so
with the plaintiff's permission. When the cir-
cus's trained lions were performing, one of
the animals got away from its enclosure and
struck the boy with its paw, injuring him.
Horrified, the plaintiff ran from his seat and
chased the lion away from the boy. The
plaintiff was not touched by the lion but
became highly nervous as a result of the inci-
dent.
If the plaintiff asserts a claim for battery
against the circus, the court should find for
(A) the plaintiff, but only if the jurisdiction
applies the doctrine of transferred
intent.
(B) the plaintiff, because the plaintiff experi-
enced mental suffering as a result of
harmful contact inflicted upon the boy.
(C) the circus, because the plaintiff was not
touched by the lion.
(D) the circus, unless the circus knew that
the lions would attack a member of the
audience when the circus exhibited
them.
670
FINZ MULTISTATE METHOD
123. When the plaintiff was divorced from her
husband, the court awarded custody of their
four-year-old son to the plaintiff. The plaintiff
frequently permitted the boy to spend week-
ends with her ex-husband at the home of the
ex-husband's father. One weekend, while the
boy was visiting with the ex-husband, a
friend of the plaintiff's phoned her. The
friend said that she heard that the ex-husband
was planning to remove the boy from the
state permanently.
Panicked, the plaintiff ran to the home of the
ex-husband's father and pounded on the door.
When the ex-husband's father came to the
door, the plaintiff demanded, in a loud voice,
that the ex-husband's father tell her where
her ex-husband and her son were. The
ex-husband's father knew that the ex-husband
had taken the boy to the movies and would
soon be returning. Because the plaintiffs
manner frightened him, however, the
ex-husband's father said that he had no idea
where they were or when they were coming
back and refused to talk to the plaintiff any
further.
As a result, the plaintiff became highly upset.
She visited her physician, who prescribed a
mild tranquilizer, but she remained nervous
until the ex-husband brought the boy to her
home that evening.
The plaintiff asserted a claim against the
ex-husband's father for false imprisonment.
The court should find for
(A) the ex-husband's father, because the
plaintiff sustained no physical injury as
a result of the incident.
(B) the ex-husband's father, if he did not
prevent the plaintiff from leaving his
home.
(C) the plaintiff, only if she was legally
entitled to custody of the boy.
(D) the plaintiff, because the ex-husband's
father prevented her from seeing or
communicating with the boy.
124. The defendant was driving down a residential
street when he saw a five-year-old boy riding
a tricycle in the roadway in front of him. The
defendant attempted to stop his car but was
unable to do so because he was traveling at
an excessive rate of speed. The defendant's
car struck and killed the boy, flinging the
child and tricycle through the air.
The plaintiff was standing in her living room
when she heard the screech of the defen-
dant's brakes. Glancing out through her win-
dow, she saw the boy's bloody body fly
through the air and land on her front lawn.
The plaintiff was so shocked by what she
saw that she suffered a heart attack and
needed to be hospitalized for several weeks.
If the plaintiff asserts a claim against the
defendant for damages resulting from mental
distress that she experienced because of the
incident, which one of the following addi-
tional facts or inferences, if it was the only
one true, would be most likely to result in a
judgment for the plaintiff?
(A) The reasonable person would have
expected someone to be in the plain-
tiff's position and to experience mental
suffering as a result of the incident.
(B) The jurisdiction applies the doctrine of
transferred intent.
(C) The jurisdiction applies the doctrine of
transferred consequences.
(D) The reasonable person would regard the
defendant's speed as outrageous.
125. A homeowner hired a painter to paint the
outside of the homeowner's house. About
two hours after the painter had finished the
job and left, the homeowner noticed the
painter's ladder lying across the homeowner's
front lawn. The homeowner immediately
phoned the painter, asking him to remove the
ladder. The painter said he would come back
for the ladder but did not do so.
Two days later, a government employee was
walking across the homeowner's lawn while
delivering mail. On several occasions in the
past, the homeowner had asked her to use the
TORTS QUESTIONS 671
sidewalk and not to walk on his lawn. The
homeowner saw the employee walking
toward the painter's ladder on his lawn but
did not warn the employee because he
believed that she saw it. Although the lawn
had recently been mowed and the ladder was
in plain view, the employee did not see the
ladder and tripped over it, injuring her knee.
The jurisdiction applies the all-or-nothing
rule of contributory negligence.
If the employee asserts a negligence claim
against the homeowner for damages resulting
from her injury, which of the following
would be the homeowner's most effective
argument in defense?
(A) The homeowner did not know with cer-
tainty that the employee would be
injured.
(B) The dangerous condition was created by
the painter.
(C) The homeowner believed that the
employee knew that the ladder was
there.
(D) A landowner owes no duty to govern-
ment employees entering on official
business.
126. Six months after a doctor performed surgery
on her, a patient was X-rayed by another doc-
tor. The X-ray disclosed a surgical instrument
inside the patient's chest. The first doctor
was the only person who had ever performed
surgery on the patient. The patient subse-
quently asserted a medical malpractice claim
against the doctor, alleging that the doctor
had negligently left the surgical instrument
inside her while operating on her.
If an expert testifies that surgeons do not usu-
ally leave instruments inside a patient's body
unless they are acting unreasonably, may the
patient rely on res ipsa loquitur in her claim
against the doctor?
No, because the doctrine of res ipsa
loquitur is not applicable to a claim for
professional malpractice.
No, because a jury of laypersons is not
competent to infer that a physician was
negligent.
Yes, because a surgeon is under an abso-
lute duty not to leave instruments
inside a patient's body.
Yes, because the doctor was the only
person who had ever performed sur-
gery on the patient.
127. Alva and Benny were driving their vehicles
in an unreasonable manner when they col-
lided. The collision caused Alva's vehicle to
strike and injure a pedestrian who was cross-
ing the street in the middle of the block. The
pedestrian was hospitalized as a result of the
accident, but he had hospitalization insurance
that paid $10,000 toward his hospital bill.
The pedestrian subsequently asserted a claim
against Alva and Benny. At the trial, in
response to the judge's instructions, the jury
found that the pedestrian sustained damages
of $100,000, and that the accident resulted 40
percent from the negligence of Alva, 40 per-
cent from the negligence of Benny, and 20
percent from the negligence of the pedestrian.
The judge ruled that Alva and Benny were
jointly and severally liable to the pedestrian
and entered judgment in accordance with the
jury's verdict.
Which of the following statements correctly
describes the amount that the pedestrian is
entitled to collect from Alva in a jurisdiction
that has a pure comparative negligence
statute?
(A) $100,000 reduced by 20 percent.
(B) $100,000 reduced by $10,000 and fur-
ther reduced by 20 percent.
(C) 40 percent of $100,000.
(D) 40 percent of the amount derived by
subtracting $10,000 from $100,000.
672 FINZ MULTISTATE METHOD
128. When the plaintiff, a law student, told her
cousin that she needed a place to study, her
cousin gave her the key to his mountain
cabin and said that she could use it. Because
the plaintiff had never been there before, her
cousin drew a map and wrote instructions on
how to find it. The plaintiff followed the map
and instructions, but when she arrived, she
found five identical cabins in a row and did
not know which one was her cousin's. She
tried the key that her cousin had given her.
When it opened the door of one of the cab-
ins, she went inside, believing the cabin to be
her cousin's.
Actually, the cabin that the plaintiff entered
did not belong to her cousin, but to his
neighbor, the defendant. The cousin knew
that his key fit the doors of all five cabins,
but he had forgotten to mention it to the
plaintiff. While the plaintiff was inside the
cabin, she attempted to turn on the gas stove.
Because of a defect in the stove, it exploded,
injuring the plaintiff.
If the plaintiff asserts a claim against the
defendant for her injuries, the court should
find for
(A) the plaintiff, because the stove was
defective.
(B) the plaintiff, if the defendant should
have anticipated that a person would
enter his cabin by mistake.
(C) the defendant, only if the plaintiff was
an unknown trespasser at the time of
the explosion.
(D) the defendant, unless the defendant
knew or should have known that some-
one would be injured by the stove.
129. One evening in Adam's tavern, a 17-year-old
girl drank alcoholic beverages that Adam sold
her. The girl then left and went to Barney's
tavern, where she drank alcoholic beverages
that Barney sold her. When the girl left
Barney's tavern, she attempted to ride home
on her motorcycle. Because the girl was
intoxicated, she struck and injured a pedes-
trian. The pedestrian subsequently asserted
claims against Adam and Barney under a
state law that provides as follows: "If a
minor under the age of 20 years injures
another while intoxicated, any person who
sold said minor the alcohol that resulted in
said minor's intoxication shall be liable to the
injured person."
Adam did not sell the girl enough alcohol to
make the girl intoxicated, and the alcohol that
Barney sold the girl would have made the
girl intoxicated even if Adam had sold the
girl no alcohol at all. In determining the
pedestrian's claim against Barney, the court
should find that
(A) Barney's conduct was not the cause of
the girl's intoxication because Adam's
conduct was a substantial factor in
making the girl intoxicated.
(B) Barney is liable under the statute even if
Barney's conduct did not cause the girl
to become intoxicated.
(C) Barney's conduct was a cause of the
pedestrian's injury because the girl
would not have become intoxicated if
Barney did not sell the girl alcoholic
beverages.
(D) Barney's conduct was a cause of the
girl's intoxication but was not a cause
of the pedestrian's injury because the
girl's driving superseded it.
130. A landowner hired a professional architect to
draw plans for a two-story residence to be
constructed on the landowner's realty. The
plans that the architect prepared called for a
staircase to be supported by a single concrete
pillar. The landowner then hired a licensed
building contractor to construct a house in
accordance with the architect's design. Upon
examining the plans, the contractor told the
landowner that she did not think that one
pillar would provide sufficient support for the
staircase. When the landowner discussed the
contractor's objection with the architect,
however, the architect insisted that one pillar
would be sufficient. The landowner told this
TORTS QUESTIONS 673
to the contractor and convinced the contractor
to rely on the architect's plan.
The contractor completed the building as
agreed and turned it over to the landowner on
April 1. Two weeks later, the landowner
hired a mover to move a piano onto the sec-
ond floor of the house. While the mover was
carrying the piano up the staircase, the stair-
case collapsed, causing the mover to sustain
injury. If the staircase had been supported by
two columns, it would not have collapsed.
If the mover asserts a negligence claim
against the contractor, the court should
declare that
(A) the contractor assumed the risk because
she supported the stairway with only
one pillar even though she was aware
of the danger of doing so.
(B) the contractor is not liable because she
had turned the building over to the
landowner prior to the accident.
(C) the contractor is not liable if it was rea-
sonable for her to rely on the archi-
tect's instructions in constructing the
stairway.
(D) the contractor absolved herself of the
risk by objecting to supporting the
stairway with only one pillar.
131. A man was obviously intoxicated when he
entered a bartender's tavern one night and
ordered a drink of Old Wheatstraw alcoholic
liquor. A statute in the jurisdiction prohibits
serving alcoholic liquor to any intoxicated
person. The bartender knew that the man was
intoxicated, but because the man was a good
customer, the bartender opened a new bottle
of Old Wheatstraw and poured him some of
it. After drinking the liquor, the man left the
tavern and began driving home.
The liquor that the bartender served the man
was manufactured by Wheatstraw. Before the
liquor left Wheatstraw's factory, an angry
employee added a poison to it that could not
have been discovered by reasonable inspec-
tion. While the man was driving in a reason-
able manner, the poison caused him to die.
As a result, the man's car struck a pedestrian,
injuring her.
If the pedestrian asserts a claim against
Wheatstraw, the court should find for
Wheatstraw, because the employee
deliberately poisoned the liquor before
it left the factory.
Wheatstraw, because the pedestrian did
not purchase or consume Wheatstraw's
product.
the pedestrian, because the liquor con-
tained poison when it left Wheat-
straw's factory.
Wheatstraw, because the poison could
not have been detected by reasonable
inspection.
132. Pursuant to a contract with the federal gov-
ernment, a rocket company manufactured and
launched rockets used for placing communi-
cations satellites into space. Shortly after the
rocket company launched one of its rockets,
the rocket exploded in the air. It then crashed
into a storage building owned by a medical
company that contained antibiotics with a
value of $180 million, totally destroying the
building and its contents. No one could deter-
mine the cause of the explosion. Although the
rocket company used reasonable care in all
aspects of the manufacturing and launching
process, a few of the rocket company's rock-
ets had exploded in the past shortly after
launch. Each time this happened, the rocket
involved was completely destroyed while in
the air and caused no damage on the ground.
If the medical company asserts a claim
against the rocket company for the loss of its
building and contents, the court should find
for
(A) the medical company, if the construction
and launching of rockets is an abnor-
mally dangerous activity.
674 FINZ MULTISTATE METHOD
(B) the medical company, under the doctrine
of res ipsa loquitur.
(C) the rocket company, if the reasonable
person would not expect antibiotics
worth $180 million to be stored in one
building.
(D) the rocket company, because none of the
rocket company's rockets caused any
damage on the ground in the past.
133. A company manufactures belt trucks, which
are small, open-motor vehicles equipped with
conveyor belts and used by airlines for han-
dling baggage. The company's officials are
aware that persons who maintain belt trucks
frequently set the belt idle above 15. They
are also aware that this can cause the belt
truck to lurch forward when the belt is acti-
vated, unless it is equipped with an accelera-
tion suppressor. For this reason, the
company's design calls for every belt truck to
be equipped with an acceleration suppressor.
However, due to an error at the factory, the
manufacturer sold an airline a belt truck that
did not have an acceleration suppressor.
Two months later, the airline went out of
business and sold the belt truck to a second
airline. An independent contractor hired by
the second airline to maintain the second air-
line's equipment set the belt idle above 15.
Subsequently, an employee of the second
airline attempted to activate the belt while
standing beside the belt truck. She was
injured when the belt truck lurched forward
and struck her.
The employee asserts a claim against the
company on the ground that the absence of
an acceleration suppressor made the belt
truck defective. The court should find for
(A) the company, if the first airline was neg-
ligent in failing to discover that the
belt truck was not equipped with an
acceleration suppressor.
(B) the company, because if the contractor
had acted reasonably in setting the belt
idle, the employee would not have
been injured.
(C) the employee, because persons who
maintain belt trucks frequently set the
belt idle above 15.
(D) the employee, because the negligence of
the contractor is imputed to the com-
pany.
134. A company operated a manufacturing plant
just outside the town, making an insecticide
that was very important to the state's orange
crop. Breezes frequently carried fumes from
the company's plant into the town. Although
the fumes did not violate state air pollution
laws, they caused many buildings in the town
to need frequent repainting and led many
homeowners to complain about it to the com-
pany. The company did nothing about it,
however, because the cost of eliminating the
fumes was extremely high.
A homeowner, who owned a house in the
town in which he resided with his son, had to
repaint his house several times because of the
fumes.
The homeowner asserted a private nuisance
claim against the company for the damage to
his paint, asserting that the company was
negligent in failing to eliminate the fumes.
Which of the following would be the compa-
ny's most effective argument in defense
against the homeowner's claim?
The operation of the company's plant
did not result in a physical invasion of
the homeowner's realty.
The fumes affected others in substan-
tially the same way as they affected the
homeowner.
The company officials did not know that
the fumes would affect the paint of the
homeowner's house.
The cost of eliminating the fumes would
have driven the company out of busi-
ness.
TORTS QUESTIONS 675
135. A company was the manufacturer of a prod-
uct known as Hairtastic, which was sold over
the counter for the treatment of dandruff and
dry scalp conditions. The plaintiff purchased
a bottle of Hairtastic at a local drugstore. A
statement on the label read, "This product
will not harm normal scalp or hair." The
plaintiff used the product as directed.
Because of a scalp condition making him
allergic to one of the ingredients, the product
irritated his scalp, causing him much pain
and discomfort.
In an action by the plaintiff against the com-
pany on the theory of strict liability in tort,
which of the following additional facts or
inferences, if it was the only one true, would
be most helpful to the plaintiff's case?
(A) Injuries of the kind sustained by the
plaintiff do not ordinarily result from
the use of a product like Hairtastic
unless the manufacturer was negligent.
(B) Prior to the plaintiff's purchase of the
product, an article regarding the allergy
from which he suffered had appeared
in a widely read journal of the hair-
care industry.
(C) The ordinary consumer would not have
expected the use of Hairtastic to result
in an irritation of the scalp of someone
with the plaintiff's allergy.
(D) At the time it manufactured the product
purchased by the plaintiff, the com-
pany was aware that its ingredients
could irritate the scalp of persons with
allergies like the plaintiff's.
136. A man was already intoxicated when he
entered the defendant's tavern. At first, the
defendant refused to serve him any more
alcohol. The man insisted, however, and at
his insistence, the defendant served him three
more drinks. When the man left the bar, he
was unable to start his car. He asked a pro-
fessor, who was driving by, to assist him. The
professor, who realized that the man was
drunk, determined that the man's battery was
weak and started the man's car by connecting
a cable to her own battery. Later, while driv-
ing, the man struck a pedestrian who was
walking across the street.
The pedestrian asserted a claim for his per-
sonal injuries against the defendant. Which of
the following would be the defendant's most
effective argument in defense?
(A) The man was already intoxicated when
he came into the bar.
(B) The accident would not have occurred if
the professor did not help the man get
his car started.
(C) The reasonable person would not have
expected the man to drive when he left
the bar.
(D) Persons outside the defendant's tavern
were not in privity with the defendant.
137. A fanner owned 500 acres of land on which
she grew wheat. By a valid written contract,
she agreed to deliver all her wheat to a com-
pany to be used by that company in the pro-
duction of bread for sale to the general
public. While harvesting the crop, she real-
ized that a blade on her harvesting machine
was broken and that fine slivers of metal
were becoming mixed with the wheat. She
said nothing about this when she delivered
the wheat to the company, since she knew
that the company ordinarily cleaned its wheat
before using it.
The bread company used the wheat that it
purchased from the farmer to manufacture a
loaf of bread that it sold to a sandwich shop.
The sandwich shop owner used the bread to
make a sandwich. Because the bread con-
tained slivers of the blade from the farmer's
harvesting machine, the customer who bought
the sandwich lacerated the lining of his throat
when he tried to eat it.
In an action by the customer against the
bread company, can the customer success-
fully rely on the doctrine of res ipsa
loquitur?
676 FINZ MULTISTATE METHOD
(A) Yes, if the exercise of reasonable care in
the baking process would ordinarily
have eliminated all metal slivers from
the wheat.
(B) Yes, if the presence of metal slivers
made the bread defective.
(C) No, if the presence of the metal slivers
in the wheat resulted from the farmer's
failure to use reasonable care.
(D) No, if it was unforeseeable that a broken
blade on the farmer's harvesting
machine would result in the presence
of metal slivers in the wheat.
138. A 13-year-old girl was a member of Super
Scouts, a national young people's organiza-
tion. As part of a Super Scout project, she
planned to spend an entire weekend camping
alone in the woods. A kidnapper, who knew
about the project, phoned the girl's mother
the day after the girl left home. The kidnap-
per said, "We have your daughter. We've
already beaten her up once, just to hear her
scream. Next time, we might kill her." The
kidnapper instructed the girl's mother to
deliver a cash ransom to a specified location
within one hour. Since there was no way to
locate the girl's campsite in the woods, the
girl's mother could not find out whether the
kidnapper was telling the truth. Horrified that
her daughter might be beaten and injured or
killed, she delivered the ransom as instructed.
She remained in a hysterical state until the
girl returned from her camping trip and the
girl's mother realized that the ransom
demand had been a hoax. The girl's mother,
who already suffered from a heart ailment,
had a heart attack the day after the girl's
return.
If the girl's mother asserts a claim against the
kidnapper for damages resulting from her
heart attack on a theory of intentional inflic-
tion of emotional distress, the court should
find for
(A) the kidnapper, because the heart attack
occurred the day after the girl's return.
the kidnapper, if the mother's preexist-
ing condition made her especially sus-
ceptible to heart attack.
the girl's mother, if the heart attack was
caused by the kidnapper's outrageous
conduct.
the girl's mother, because the kidnapper
should have foreseen that his conduct
would result in harm.
139. While the plaintiff was visiting her daughter,
the two of them decided to go swimming at a
nearby public pool. Since she had not
brought a bathing suit along on her visit, the
plaintiff went to a department store to pur-
chase one. While looking at the suits on the
bargain counter, she found one made by a
bathing suit company. The package that con-
tained it bore a label that read, "Disposable
Bathing Suit. This garment is made com-
pletely from recycled paper. Although it is
strong enough to be worn several times and
is even washable, it's inexpensive enough to
be thrown away after one use. Buy several,
and take them with you on trips to the
beach." The plaintiff bought the suit and then
went to the beach. The first time she was hit
by a wave, however, the suit completely dis-
integrated.
Which of the following additional facts or
inferences, if it was the only one true, would
be most helpful to the department store's
defense in an action by the plaintiff against
the department store?
(A) The department store had sold the bath-
ing suit company's products for several
years and had never heard of any prob-
lem like the one experienced by the
plaintiff.
(B) A sign on the bargain counter where the
plaintiff found the suit said, "Sale Mer-
chandise. All sales final."
(C) The plaintiff knew that paper bathing
suits like the one she had purchased
sometimes dissolved when they
became wet.
678 FINZ MULTISTATE METHOD
(C) it was reasonable for the company to
market the tablets.
(D) the presence of the toxic material was a
defect.
143. A driver was looking for an address as he
drove down the street and was not watching
the road in front of him. As a result, he did
not see a pedestrian crossing the street in
front of him and struck her with his car,
knocking her down. The driver immediately
got out of her car to help the pedestrian.
When he saw that she was unconscious, he
became afraid to move her and left her in the
roadway while he ran to a nearby phone.
While the driver was gone, a taxi driver
drove down the same street. Because he was
intoxicated by cocaine, the taxi driver did not
see the pedestrian in the roadway, and drove
over her, fracturing her leg.
In an action by the pedestrian against the
driver for damages resulting from her frac-
tured leg, a court is most likely to find for
(A) the pedestrian, if the driver's negligence
was a factual and legal cause of the
pedestrian's fractured leg.
(B) the pedestrian, since the negligence of
the taxi driver is imputed to the driver.
(C) the driver, since his conduct was a legal
cause but not a factual cause of the
pedestrian's fractured leg.
(D) the driver, if the pedestrian would not
have been injured but for the taxi
driver striking her.
144. The employee was employed by the
employer as chief field mechanic. When he
received his salary, the employee noticed that
he had not been paid for the overtime that he
had worked the previous month. When he
complained to the employer about it, the
employer said that all company employees
were expected to put in extra time when nec-
essary and that he had no intention of com-
pensating the employee for the excess hours.
The employee resigned immediately and
advised the employer that he would hold the
tools that the employer had issued to him
until he received payment.
The employee applied for a job with another
company, and that company wrote to the
employee's former employer asking for an
evaluation of the employee's honesty and
ability. The employer wrote a letter to the
other company that stated, "When the
employee left my company, a valuable set of
tools left with him. This disappearance has
never been properly explained or straightened
out." As a result, the other company did not
hire the employee. If the employee asserts a
claim against his old employer for defama-
tion, the employee should
(A) lose, if the employee did not return the
tools that he took when he left the
employer's employ.
(B) lose, because the employer's statement
was made in response to a specific
request by the employee's prospective
employer.
(C) win, because the employer's statement
could not have benefitted the employ-
er's business interests.
(D) win, if the employer's statement accused
the employee of stealing tools.
145. A pilot was injured when the helicopter that
he was flying ran out of fuel and fell from
the air, crashing into the roof of a homeown-
er's house. The pilot purchased the helicopter
from the helicopter maker two months before
the accident occurred. The helicopter came
equipped with a fuel gauge that was manu-
factured by a gauge maker. The day after the
pilot purchased the helicopter, he noticed that
the fuel gauge gave incorrect readings. He
complained to an officer of the helicopter
maker, who told him to have it fixed and to
send the helicopter maker the bill. A week
before the accident, the pilot hired an inde-
pendent airplane mechanic to repair the fuel
gauge. The mechanic worked on the gauge
but failed to repair it properly. The day
before the accident, the pilot's partner flew
the helicopter, using most of the fuel in the
TORTS QUESTIONS 677
(D) The department store could not implead
the bathing suit company into the
action because the company had gone
out of business.
140. A state statute provides that no person shall
transport passengers for hire in an airplane
unless that person shall be licensed as a com-
mercial airplane pilot. A pilot owned a small
private airplane but did not have a commer-
cial pilot's license. A businessman, who had
a business engagement in the City of Terra,
offered the pilot $200 to fly him there in the
pilot's plane. The pilot agreed, after inform-
ing the businessman that he did not have a
commercial pilot's license as required by law.
While they were flying over the City of
Firma, the pilot realized that he had miscal-
culated the amount of fuel that he needed for
the trip. As a result, he was forced to land at
the Firma Airport. After landing and while
waiting to be refueled, the pilot's plane was
struck by a plane that was being negligently
operated by another pilot. The first pilot and
the businessman were both injured in the col-
lision. The jurisdiction applies the all-or-
nothing rule of contributory negligence.
The first pilot asserted a claim against the
second pilot for damages resulting from per-
sonal injuries that he received in the colli-
sion. A court is most likely to find for
(A) the first pilot, because the accident
resulted from the negligence of the
second pilot in the operation of his air-
plane.
(B) the second pilot, because the first pilot's
transportation of a passenger for hire in
violation of the statute was negligence
per se.
(C) the second pilot, because the first pilot's
original flight plan did not include a
stop at Firma Airport.
(D) the second pilot, under the doctrine of
necessity.
141. The company manufactured a device called
the Yawp for training dogs. The Yawp con-
sisted of a leather strap fastened to a collar
made of metal links. The links were con-
nected to each other in such a way that a pull
on the leather strap would cause the collar to
tighten painfully around the neck of the dog
wearing it. In this way, the dog being trained
could be disciplined immediately upon per-
forming improperly. A professional dog
trainer was working with a dog known as
Spot in her unfenced front yard and was
using a brand new Yawp. A man was walking
past the yard when Spot began to snarl and
lunge at him. When the trainer yanked on the
leather strap of the Yawp, it suddenly broke,
freeing Spot. The dog sprang forward, biting
the walker.
If the walker asserts a claim against the dog
trainer, the walker's most effective argument
in support of his claim would be that
(A) the dog trainer is strictly liable for dam-
age resulting from her use of a defec-
tive product.
(B) it was unreasonable for the dog trainer
to work the dog in her front yard.
(C) the dog trainer's conduct was a concur-
ring cause of harm.
(D) the dog trainer was a professional dog
trainer.
142. Because the plaintiff had a headache, he took
two headache tablets from a bottle that had
been purchased by his wife at the grocery
store. The tablets had been manufactured by
the company, which sold them to the grocery
store in sealed bottles for resale. Because of a
toxic ingredient that the tablets contained, the
plaintiff became ill as a result of taking them.
If the plaintiff asserts a claim against the
company based on a theory of strict liability
in tort, the ruling should turn on the question
of whether
(A) the company knew that the tablets con-
tained a toxic ingredient.
(B) headache tablets that contain a toxic
ingredient are inherently dangerous.
TORTS QUESTIONS 679
tank. Although the pilot's partner noticed that
the fuel gauge continued to indicate that the
tank was full, he neither mentioned it to the
pilot nor replaced the fuel in the tank. On the
day of the accident, the fuel gauge indicated
that the tank was full, although it was actu-
ally almost empty.
If the homeowner institutes an action for
damage to his house against the helicopter
maker on a theory of strict liability in tort,
the court should find for
(A) the homeowner, since the doctrine of res
ipsa loquitur applies to aircraft acci-
dents.
(B) the homeowner, if the accident proxi-
mately resulted from a defect in the
fuel gauge that existed when the pilot
purchased the helicopter.
(C) the helicopter maker, since the home-
owner was not a user of the helicopter.
(D) the helicopter maker, if the accident
proximately resulted from the conduct
of either the mechanic or the pilot's
partner.
146. The seller knew that the wowee of his car's
engine was cracked. Because he wanted to
sell the car, he filled the crack with putty and
painted it so that the crack would not show.
Then he brought the car to the buyer, a used
car dealer, and offered to sell it for $1,000
cash. The buyer placed the car on a lift so
that he could inspect it from underneath. He
noticed the filled crack but thought that he
would be able to resell the car in spite of it.
The buyer offered $500, which the seller
accepted. The next day, the buyer was show-
ing the car to a customer when the crack in
the wowee caused the engine to explode,
necessitating $500 in repairs and injuring the
customer.
If the customer asserts a claim against the
seller for injuries that he sustained when the
engine exploded, which of the following
would be the customer's most effective
theory?
(A) Battery, because the seller knew that the
wowee was cracked.
(B) Intentional misrepresentation, because
the seller knew that the wowee was
cracked.
(C) Negligent misrepresentation, because the
seller had a duty to disclose that the
wowee was cracked.
(D) Negligence, because the seller should
have anticipated that a customer of the
buyer would be injured as a result of
the cracked wowee.
147. Plymouth seeds are a common ingredient in
bird food and are sometimes used in salads.
A breeder was a breeder of exotic birds.
Since he had studied bird nutrition, he pre-
ferred to mix feed for his birds according to
his own formula instead of using commer-
cially available mixes. For this purpose, he
purchased a sealed 50-pound package labeled
"Plymouth Seeds" from the dealer, who was
in the business of selling supplies for bird
and livestock breeders. The dealer had bought
the sealed package from a wholesaler of seed
and grain. Because of negligence at the
wholesaler's plant, the seeds in the package
were poisonous. The breeder ate some of the
Plymouth seeds while he was mixing the bird
food and became ill several hours later as a
result.
If the breeder institutes a personal injury
action against the dealer for damages result-
ing from his illness, the breeder's most effec-
tive theory of recovery would be
(A) negligence, since the unreasonable con-
duct of the wholesaler is imputed to
the dealer.
(B) negligence, if the contents of a sack of
Plymouth seeds would not ordinarily
be poisonous unless they were defec-
tive when sold.
(C) breach of express warranty, since the
label "Plymouth Seeds" implies that
the ingredients are fit for human con-
sumption.
680 FINZ MULTISTATE METHOD
(D) strict liability in tort, if the poisonous
nature of the seeds was a defect.
148. A natural gas factory was located on the edge
of the city. When the wind blew from the
east, foul-smelling waste gases from the fac-
tory's chimneys were blown over the city,
causing most of the residents to experience a
burning of the eyes and throat. On several
occasions, a city resident attempted to per-
suade the city attorney to seek an injunction
against the factory. The city attorney refused,
however, because the city council was afraid
that doing so would drive the factory from
the area. If the resident seeks an injunction
by asserting a claim against the factory on a
theory of public nuisance, which of the fol-
lowing would be the factory's most effective
argument in defense?
(A) The city attorney's decision is binding.
(B) The resident has not sustained harm dif-
ferent from that of the general public.
(C) A private citizen may not seek an
injunction against environmental pol-
luters.
(D) A private citizen may not sue on a
theory of public nuisance.
149. A trucker was eating cherry pie in a restau-
rant when a cherry pit contained in the pie
stuck in his throat. Unable to breathe, the
trucker began choking. A doctor who was
eating in the restaurant ran to the trucker's
aid and performed an operation known as an
emergency tracheotomy. She did this by cut-
ting the skin of the trucker's throat with a
pocket knife and creating an opening in his
windpipe through which the trucker was able
to breathe. Then, at the doctor's direction, the
trucker walked across the street to a hospital
so that the opening that the doctor created
could be cleaned and bandaged. Because hos-
pital employees negligently failed to enter the
trucker's name in the emergency room regis-
ter, he sat in the emergency room for six
hours without further attention. At that time,
an earthquake caused a portion of the hospi-
tal's structure to fall, striking the trucker in
the head and fracturing his skull.
Assume that the doctor's conduct in perform-
ing the emergency tracheotomy was unrea-
sonable, and if the doctor had acted
reasonably, the trucker would have coughed
up the pit without any injury. In an action by
the trucker against the doctor for damages
resulting from his fractured skull, will the
trucker win?
(A) Yes, since he would not have been in
the hospital if the doctor had not per-
formed the tracheotomy.
(B) Yes, if it was foreseeable that the
trucker would be required to wait six
hours in the hospital's emergency
room.
(C) No, since he would not have been
injured were it not for the cherry pit
contained in the pie.
(D) No, if the earthquake was a superseding
cause of the trucker's injury.
150. Automobiles driven by Able and Baker col-
lided in an intersection. Able and Baker
asserted negligence claims against each other
for damage to their vehicles. In addition, a
passenger in Able's car at the time of the
accident asserted a negligence claim against
both of them for her personal injuries. The
claims were all consolidated and tried
together. In answer to specific questions
posed by the court, the jury found that the
accident was 60 percent the fault of Able and
40 percent the fault of Baker. In addition, the
jury found that damage to Able's car
amounted to $1,000, that damage to Baker's
car amounted to $10,000, and that damage to
the passenger amounted to $100,000. The
court ruled that Able and Baker were jointly
and severally liable for the passenger's inju-
ries.
The jurisdiction had a statute that provided
that "In any negligence action, a plaintiff's
recovery shall not be barred by that plain-
tiff's fault, but the recovery of said plaintiff
TORTS QUESTIONS 681
shall be diminished in proportion to such
plaintiff's fault, unless that plaintiff's fault
shall be greater than that of the defendant,
and in such event the plaintiff's recovery
shall be barred." Which of the following cor-
rectly states the sum to which Able is
entitled?
(A) $600 ($1,000 less 40 percent).
(B) $400 ($1,000 less 60 percent).
(C) $1,000.
(D) 0.
151. The landlord was the owner of a four-story
office building. The entire second floor of the
building was leased to an attorney, and the
other floors were divided into offices and
leased to various other tenants. Pursuant to
the lease between the landlord and the attor-
ney, a building manager employed by the
landlord was to be on duty daily between the
hours of 8 A.M. and 6 P.M. The building was
to be open to the public during those hours.
At other times, the attorney was free to enter
by using his key. On April 1, the attorney
was riding in the building elevator when it
suddenly and without warning plunged
swiftly downward, shaking the attorney up
severely. The attorney immediately notified
the landlord, who promised to fix it. The
landlord did nothing about it, however. On
April 2, a client called to make an appoint-
ment to consult with the attorney for legal
advice. Because the client was unable to
come to the attorney's office during regular
business hours, the attorney told the client to
come the following morning at 6:30 A.M. On
April 3, the attorney met the client at the
entrance to the building, let them both in
with his key, and led the client to the eleva-
tor. While they were riding in the elevator to
the attorney's office, the elevator suddenly
plunged swiftly downward, stopping short
when it reached the bottom of the elevator
shaft. The client was severely injured in the
fall.
The client asserted a claim against the land-
lord for damages resulting from his injuries,
alleging that the landlord was negligent in
failing to fix the elevator or warn the client
about it. Which of the following would be
the landlord's most effective argument in
defense?
(A) The landlord did not owe the client a
duty to repair the elevator since the
landlord's promise was not made to
the client.
(B) The client was a mere licensee since his
presence did not confer a benefit on
the landlord.
(C) It was not foreseeable that the attorney
would permit the client to use the
elevator since the attorney knew it was
not working properly.
(D) It was unreasonable for the attorney to
permit the client to use the elevator
since the client knew that it was not
working properly.
152. A company manufactures a product called
Killem, consisting of chemical pellets that
emit fumes that are poisonous to termites and
their eggs. Because Killem fumes are poison-
ous to human beings as well, the company
sells the product to professional extermina-
tors only, requiring that each purchaser show
his or her state exterminator's license when
making a purchase. A shop owner, a licensed
exterminator, bought a large container of
Killem from the company for use in his busi-
ness. The container bore a label that read:
"Killem. For killing termites. Caution: This
product is intended for use by professional
exterminators only. Unauthorized use by any
other persons may be dangerous." The shop
owner placed the container on a shelf in his
shop, where it was discovered by an indepen-
dent contractor who the shop owner periodi-
cally hired to clean his shop. Since the
cleaner thought there were termites in his
house, he opened the container and poured
some of the chemical pellets into a plastic
bag that he then brought home. The next day,
the cleaner's three-year-old daughter found
the plastic bag containing the Killem pellets
and ate some of them, becoming seriously ill
682 FINZ MULTISTATE METHOD
as a result. A statute in the jurisdiction
adopted the all-or-nothing rule of contribu-
tory negligence.
In an action by the daughter against the shop
owner, which of the following would be the
daughter's most effective argument?
(A) The store owner should have foreseen
that the Killem would cause injury to
someone in the daughter's position if
left on an exposed shelf in his shop.
(B) The Killem was defective since its label
did not adequately warn of the dangers
connected with its use.
(C) Killem is an inherently dangerous prod-
uct.
(D) The contractor's theft of the Killem
pellets was a concurring cause of his
daughter's harm.
153. After living together for several months, a
man and his girlfriend began to argue fre-
quently. On Monday, after an argument, the
man left their apartment in anger, saying that
he didn't know when he was coming back.
The girlfriend changed the lock on the front
door and began advertising for a roommate.
The following Saturday, the girlfriend took
all the man's possessions, including his tele-
vision set, which was valued at $600, to a
swap meet in hopes of selling them. At the
swap meet, she put up a sign that said,
"Moving. Everything Must Be Sold Today."
A neighbor was browsing at the swap meet
when she saw the television set at the girl-
friend's booth. She asked whether it was in
good condition, and when the girlfriend said
that it was, she asked the price. The girlfriend
said, "$50." The neighbor immediately
handed the girlfriend the cash, placed the
television in her station wagon, and hurried
home.
If the man instituted an action against his
former girlfriend for trespass to chattel,
which one of the following additional facts or
inferences, if it was the only one true, would
be most helpful to the girlfriend's defense?
The man's leaving the apartment consti
tuted implied consent to the girl-
friend's sale of his possessions.
The girlfriend's interference with the
man's right to the television was seri-
ous enough to justify a forced sale.
The neighbor committed a conversion
by purchasing the television set at the
swap meet.
At the time the man's action against her
was instituted, the girlfriend could not
reacquire possession of the television
set from the neighbor.
154. The plaintiff and the defendant lived on the
same street and worked in the same office, so
they formed a car pool, each driving his own
car on alternate days. One day while the
defendant was driving, the car in front of him
stopped suddenly and without warning. Since
the defendant had taken his eyes off the road
for a moment to look at the plaintiff, he was
unable to stop in time and collided with the
rear of the stopped car. The plaintiff was
injured as a result of the collision.
There was no automobile guest statute in the
jurisdiction. In an action by the plaintiff
against the defendant, which of the following
would be the defendant's most effective argu-
ment in defense?
(A) The plaintiff assumed the risk since he
knew that it was possible that the
defendant's car would be involved in
an accident while traveling to work.
(B) The defendant's conduct was not a
cause-in-fact of harm since the acci-
dent would not have occurred if the car
in front of him had not stopped sud-
denly.
(C) The defendant did not owe the plaintiff
a duty of reasonable care since the
plaintiff was a licensee.
TORTS QUESTIONS 683
(D) It was not negligent for the defendant to
take his eyes off the road for a
moment.
155. The company is the manufacturer of a device
known as the Ripper, which was designed for
use by professional rescuers in removing
accident victims who have become pinned in
automobiles. The Ripper consists of power-
scissors which, when connected to a portable
power-pack, are strong enough to rapidly cut
through the metal of a car body. Because the
Ripper is heavy and powerful, improper use
of it could result in serious harm to the user,
as well as to the person being rescued. For
this reason, the company sells it only to fire,
police, and other rescue agencies and offers a
free training course to members of any such
agencies that purchase it.
The fire department purchased a Ripper from
the company, and its fire chief attended the
company training course on its use. Subse-
quently, the fire department was called to the
scene of an accident in which a woman was
trapped in her car. The fire chief directed a
volunteer firefighter to use the Ripper to free
the woman from her car, although he knew
that the volunteer firefighter had not been
trained in its use.
The volunteer firefighter, who had never
heard of the Ripper before, used it improp-
erly, injuring both himself and the woman.
If the woman instituted an action against the
fire chief, the woman's best theory would be
(A) negligence.
(B) battery.
(C) strict products liability.
(D) res ipsa loquitur.
156. As a result of her neighbor's negligence, the
plaintiff's shoulder and eye were both
injured. The plaintiff went immediately to her
eye doctor. The eye doctor treated the injury
to the plaintiff's eye but suggested that she
see an orthopedist for treatment of her
shoulder. The following day, the plaintiff vis-
ited an orthopedist, who treated the plaintiff's
shoulder.
Because of negligent treatment by the eye
doctor, the plaintiffs nose became infected,
and because of negligent treatment by the
orthopedist, she lost the use of her elbow.
In an action by the plaintiff against her
neighbor, which of the following parts of the
plaintiffs body is a court most likely to find
were injured as a proximate result of the
neighbor's negligence?
(A) Her nose.
(B) Her elbow.
(C) Both her nose and elbow.
(D) Neither her nose nor her elbow.
157. The Men of God is a small religious sect that
had its origins in colonial Mexico. Originally,
members of the sect believed that theft was
holy. During the 19th century, they were
prosecuted for engaging in religious rituals
that involved robbing strangers. At the start
of the 20th century, the leaders of the sect
revised its philosophy and prohibited the theft
that they had formerly encouraged. Some
non-members of the sect continue to associ-
ate it with robbing people and continue to
call its members "Robbers," a term coined by
19th-century journalists who campaigned
against the sect.
A minister ordained in the Church of Men, a
religious organization that is not associated in
any way with the Men of God, delivered the
benediction at the year's first meeting of the
Town Council of Dartmouth. The following
day, the Dartmouth Globe, a daily newspaper,
printed an article about the meeting. The
article referred to the minister as "a minister
of the Church of Men, better known as the
Robbers (Men of God)." The minister insti-
tuted an action against the Dartmouth Globe,
alleging that the reference to him as a minis-
ter of "the Robbers (Men of God)" was defa-
matory.
684 FINZ MULTISTATE METHOD
Which of the following is a court most likely
to find about the statement that appeared in
the Dartmouth Globe?
(A) The statement is not defamatory if the
Robbers can be classified as a religion
under the First Amendment to the
United States Constitution.
(B) The statement is not defamatory if mem-
bers of the Men of God do not cur-
rently engage in improper activities.
(C) The statement is not defamatory if a
substantial group of right-thinking
people know that members of the orga-
nization known as the Robbers no
longer engage in improper activities.
(D) The statement is defamatory if many
people continue to believe that mem-
bers of the organization known as the
Robbers engage in improper activities.
158. A company was in the business of developing
and manufacturing machinery used in other
industries. Having developed a nerfer
machine for shaping and stamping Whatsits,
the company manufactured and sold seven of
them to Whatsit companies throughout the
United States. One of the nerfer machines
manufactured by the company was sold to
the First Whatsit Company, which used it
without problems for three years. At the end
of that time, however, First redesigned its
Whatsits. Since the nerfer machine that it had
purchased from the company was inadequate
for the production of First's improved
Whatsit, First sold the machine to Second
Whatsit Company, a company specializing in
selling products which, since they were
slightly out of date, could be produced and
sold at low prices.
The company learned that the flopsy pins in
its nerfer machines tended to wear out after
three or four years, making the machines
dangerous. It contacted the First Whatsit
Company, offering to replace the worn part
for $1,000, which was what the repair would
cost the company to make. When First
advised the company that the machine had
been sold to Second, the company contacted
Second and made the same offer. Because
Second did not want to spend the money,
however, it refused the company's offer. Two
months later, a Second employee was injured
when the worn part in the nerfer machine
caused it to explode.
The employee instituted a negligence action
against the company that made the machine.
The company's defense was based on the
assertion that prior to the accident, the com-
pany neither knew nor reasonably could have
known that the flopsy pin would wear out. If
the jury believes this assertion, the employee
will
(A) win, since the company is deemed to be
an expert in its field and has a duty to
know all relevant facts about the prod-
uct that it makes.
(B) win, since it is foreseeable that if the
flopsy pin did wear out, someone
would be hurt.
(C) win, since a manufacturer is strictly
liable for defects in its product,
whether or not it could have prevented
those defects.
(D) lose.
159. A carpenter who was building a house on his
own property had posted a sign that said,
"No Trespassing." He was working on the
framework of his roof when he found that he
had brought the wrong hammer onto the roof
with him. Without looking to see if anyone
was around, he tossed the hammer to the
ground, shouting, "Heads up!"
A truck driver was assigned to deliver lumber
on the street where the carpenter was build-
ing the house. The carpenter had not ordered
lumber, but when the truck driver saw the
carpenter working on the roof of an unfin-
ished house, he incorrectly assumed that the
carpenter was the person to whom he was
supposed to deliver the lumber. He parked his
truck at the curb and was walking across the
carpenter's property toward the unfinished
TORTS QUESTIONS
685
house to talk to the carpenter about the deliv-
ery when he was struck in the head by the
hammer thrown by the carpenter. The truck
driver cried out in pain and then fell to the
ground, unconscious and bleeding. The car-
penter saw it happen, but he merely shrugged
and continued working.
A moment later, a passerby who had seen
what happened called an ambulance. When it
arrived, the truck driver was still uncon-
scious. The ambulance driver loaded the
truck driver into the ambulance and began
driving to the hospital. Because of the ambu-
lance driver's negligent driving, the ambu-
lance struck a pole. The truck driver was
killed in the crash.
The representative of the truck driver's estate
instituted an appropriate action against the
carpenter, in a jurisdiction that applies the
all-or-nothing rule of contributory negligence,
alleging that the carpenter's throwing of the
hammer without looking was negligence. If it
were the only one true, which of the follow-
ing additional facts or inferences would be
most effective in the carpenter's defense
against that allegation?
It was reasonable for the carpenter to
believe that no one would be struck by
the hammer.
It is customary in the construction
industry for people working on a roof
to toss unwanted tools and objects to
the ground without looking, so long as
they shout, "Heads up!"
The truck driver could have avoided
being struck by the hammer if he had
seen it coming.
The blow of his hammer would not
have caused a serious injury to a nor-
mal person, but it seriously injured the
truck driver because his head was
extraordinarily sensitive.
160. A company manufactures several kinds of
cooked-apple desserts, which are marketed in
sealed packages labeled "Gobblers." One
morning on his way to work, a man pur-
chased a package of Gobblers from a grocery
store. Later that day, while eating lunch, the
man opened the package, removed the lid,
and began eating the contents with a spoon.
After consuming more than half of the prod-
uct, the man noticed mold mixed with the
cooked apple.
If the man asserts a claim for negligence
against the grocery store, the court should
find for
(A) the man, because any negligence by the
manufacturer of a product is imputed
to a retailer selling that product.
(B)
the man, if the product was defective
when the man purchased it from the
grocery store.
(C) the grocery store, unless the grocery
store failed to act reasonably in selling
the product to the man.
(D) the grocery store, because a retailer is
under no duty of reasonable care when
selling products packaged in sealed
containers.
161. The driver was driving her car north on
Pogue Boulevard when the car in front of her
stopped suddenly to avoid striking a cat that
had run into the roadway. Since there were
no cars coming toward her, the driver
swerved over the centerline and into the
southbound lane. When she did so, she struck
and injured a nine-year-old boy who was
walking a bicycle south in the southbound
lane. Because the sun was in her eyes, the
driver did not see the boy until her car struck
him.
Half an hour before the accident, the boy's
mother told the boy that she did not want
him riding his bicycle on Pogue Boulevard
because it was a heavily travelled roadway
with no sidewalks. She gave him permission,
however, to walk his bicycle carefully along
the road shoulder.
686 FINZ MULTISTATE METHOD
As a result of the accident, the boy sustained
brain damage that will make it impossible for
him to support, feed, or care for himself for
the rest of his life. The jurisdiction applies
the all-or-nothing rule of contributory negli-
gence.
Assume the driver was acting unreasonably
when her car struck the boy. If the boy
asserts a negligence claim against the driver
for his injuries, the court should find for
(A) the boy, unless the accident resulted
from his own unreasonable conduct.
(B) the boy, because a nine-year-old is pre-
sumed incapable of contributory negli-
gence.
(C) the boy, under the doctrine of res ipsa
loquitur.
(D) the driver, if it was unreasonable for the
boy's mother to give her son permis-
sion to walk his bicycle along the
roadway.
162. One night, police officers received a message
that a burglary was in progress at a grocery
store. Rushing to the location, they discov-
ered that the back door of the store was open.
Entering cautiously, they saw two burglars
hiding in the storage room. In the ensuing
attempt to make an arrest in the dark, the
officers knocked over several stacks of mer-
chandise, including cases of bottled soda-pop
manufactured by the company. This caused
minute cracks in all the bottles. The follow-
ing day, store employees cleaned up the
mess, restacking the cases of soda-pop.
Approximately one week later, six of the
cases were placed on display in the store. A
woman purchased one of the bottles from
these six cases but did not notice the minute
crack in it.
That evening, the woman was placing the
bottle on the dinner table when the bottle
exploded because of the crack in it, sending
fragments of glass flying in all directions.
Both the woman and her daughter were cut
by the flying glass.
In an action by the woman against the gro-
cery store, a court is most likely to find for
(A) the woman, because she could not have
done anything to protect herself against
the kind of injury that occurred.
(B) the woman, if the grocery store's con-
duct in restacking and selling the
bottles was unreasonable under the cir-
cumstances.
(C) the grocery store, if the conduct of the
police officers is found to be a proxi-
mate cause of the injury sustained by
the woman.
(D) the grocery store, because the woman
and the grocery store were not in priv-
ity.
163. One day, while a well-known collector was
visiting the dealer's art gallery, the dealer
showed him a new painting called The
Chocolate Labrador that she had received
that day.
"The artist didn't sign it," the dealer said.
"But I'm sure it was painted by Monet. That
would make it worth at least $250,000."
The collector answered, "It's by Monet, all
right. It's worth every cent you're asking.
But I already have several paintings by
Monet in my collection, and I don't need
another."
The buyer, who was browsing in the dealer's
gallery, overheard the conversation between
the collector and the dealer. The buyer knew
very little about art, but he had just inherited a
large sum of money. Because he knew that the
collector and the dealer were art experts, he
believed what he heard them saying. After the
collector left the gallery, the buyer asked the
dealer if she would accept $200,000 for The
Chocolate Labrador. The dealer said that she
would not take anything less than $250,000.
After negotiation, the buyer purchased it for
$225,000. The buyer subsequently learned that
The Chocolate Labrador had not been painted
by Monet and was worth only $600.
TORTS QUESTIONS 687
If the buyer is successful in a tort action for
misrepresentation, the court is likely to award
him a judgment for
(A) $250,000 (the value that the dealer
stated).
(B) $250,000 (the value that the dealer
stated), on condition that the buyer
return The Chocolate Labrador to the
dealer.
(C) $225,000 (the price that the buyer paid
to the dealer).
(D) $224,400 (the price that the buyer paid
to the dealer, less the value of The
Chocolate Labrador).
164. A husband asserted a claim against a railroad
company employee, alleging that statements
made by the employee were misrepresenta-
tions. Attorneys for both parties agreed to the
following facts:
The husband's wife died when she jumped in
front of a train owned by the railroad. Two
weeks later, the railroad employee contacted
the husband. The employee said that although
the railroad was not legally responsible for the
wife' s death, the railroad was willing to pay
$1,000 in full settlement of all claims arising
from the wife's death. When the husband said
he wanted to speak with an attorney, the
employee told him that if an attorney got
involved, the railroad would not pay anything
because the husband "had no legal claim." The
husband doubted that the employee was telling
the truth, so he consulted with an attorney. The
attorney didn't think the husband had a claim
and declined representation. Consequently, the
husband accepted the $1,000 and executed a
general release. The husband then retained
another attorney and instituted a wrongful
death action against the employee.
Which of the following would be the
employee's LEAST effective argument in
defense against the husband's claim?
(A) Liability should not be imposed on the
employee because he was acting within
the scope of his employment when he
made the statements to the husband.
(B) Statements regarding the law are state-
ments of opinion because all persons
are presumed to know the law.
(C) The husband did not rely on the state-
ments made by the employee because
he consulted with an attorney before
accepting the employee's offer.
(D) The husband was not justified in relying
on the statements made by the
employee because the husband knew
that the employee represented the rail-
road.
165. The plaintiff purchased a bottle of dishwash-
ing detergent made by the defendant from a
self-service supermarket. The plaintiff
selected the defendant's product from the
store shelves, carried it to a checkout
counter, and paid the cashier. The plaintiff
then placed the bottle in a bag furnished by
the supermarket and carried it home. After
using the product for washing dishes, the
plaintiff experienced a serious rash on his
hands and wrists as the result of an allergic
reaction to a chemical in the product.
If the plaintiff asserts a claim against the
defendant on the ground that the product was
not merchantable, which of the following
additional facts or inferences, if it were the
only one true, would provide the defendant
with its most effective defense?
(A) The plaintiff's allergic reaction was the
only such reaction that ever occurred.
(B) The supermarket purchased the product
from an independent wholesaler that
purchased it from the defendant.
(C) Before marketing the product, the defen-
dant made a reasonable effort to deter-
mine whether the product would be
harmful to normal skin.
688 FINZ MULTISTATE METHOD
(D) Prior to manufacturing and marketing
the product, the defendant received
approval for its sale from the federal
Food and Drug Administration.
166. A pilot was a commercial pilot who operated
a package air-delivery service. Having been
hired to deliver a parcel to an airport located
300 miles away, he had his plane filled with
fuel supplied by an oil company. The fuel
that was put into the pilot's fuel tank had
been contaminated before leaving the oil
company's refinery, but neither the pilot nor
the oil company knew about the contamina-
tion. After the pilot had flown 100 miles
from the airport, the contaminants in the fuel
caused his engine to fail. The pilot looked for
a place to make an emergency landing and
chose the parking lot of a whaling museum
because it was the only level land in the
vicinity. The whaling museum housed a rare
and valuable collection of whaling parapher-
nalia.
The building of the museum was damaged by
the pilot's landing. If the museum asserts a
claim against the oil company on the theory
of strict liability in tort, the court should find
for
(A) the museum, if the contaminants in the
fuel supplied to the pilot made the fuel
defective.
(B) the museum, unless the oil company
acted reasonably.
(C) the oil company, only if the contamina-
tion of fuel before it left the oil com-
pany refinery was unforeseeable.
(D) the oil company, because it had no busi-
ness relationship with the museum.
167. At 9 A.M., a man parked his car on George
Road in front of the play yard of George
Elementary School. At the time he parked the
car, the man knew that he was violating a
statute that prohibited parking within two
blocks of any elementary school. At 10 A.M.
on the same day, because she was driving at
an unreasonably fast rate of speed, a woman
lost control of her car and struck the man's
parked vehicle. The impact caused a passen-
ger in the woman's car to be thrown against
the windshield, severely cutting her face and
rendering her unconscious. If the man's car
had not been parked where it was, the
woman would have collided with a six-foot
concrete wall that surrounded the school play
yard.
If the passenger asserts a negligence claim
against the woman, the court should find for
(A) the woman, unless it was unforeseeable
that a car would be illegally parked in
front of an elementary school play
yard.
(B) the woman, if the man's conduct in
parking the car can be regarded as
gross and willful misconduct.
(C) the passenger, if it was likely that a col-
lision with a stationary object would
result in injury to a passenger in the
woman's car.
(D) the passenger, unless there were other
causes of harm.
168. At the trial of The Plaintiff v. Allred and
Bailey, the jury found that the plaintiff was
damaged to the extent of $100,000. The jury
further found that the plaintiff's damage was
caused 20 percent by the plaintiff's negli-
gence, 40 percent by Alfred's negligence, and
40 percent by Bailey's negligence. The juris-
diction had a statute that read as follows:
In a negligence action, no plaintiff
shall be barred from recovery
because of that plaintiff's contribu-
tory negligence, but such plaintiff's
recovery shall be diminished in
proportion to plaintiff's own fault.
The court held that Allred and Bailey were
jointly and severally liable for the plaintiff's
damage and entered judgment for the plaintiff
consistent with the jury's verdict.
TORTS QUESTIONS 689
Prior to the entry of judgment, the plaintiff
collected $10,000 from an insurance com-
pany under a policy in which it agreed to pay
any medical bills that the plaintiff might
incur as the result of an automobile accident.
Which of the following correctly reflects the
sum that the plaintiff is entitled to collect
from Allred and Bailey?
(A) $90,000, because the plaintiff's damage
of $100,000 should be diminished by
the sum the plaintiff received from the
insurance company.
(B) $80,000, because the plaintiff's damage
of $100,000 should be diminished by a
sum proportional to the plaintiffs own
fault, without regard to sums that the
plaintiff has received under the insur-
ance policy.
(C) $70,000, because the plaintiff's damage
of $100,000 should be diminished by a
sum proportional to the plaintiff's own
fault and further diminished by the
sum that the plaintiff received under
the insurance policy.
(D) $60,000, because the plaintiff's damage
of $100,000 should be diminished by a
sum proportional to the plaintiff's own
fault, and Allied's and Bailey's propor-
tional shares should each be further
diminished by the sum that the plain-
tiff received under the insurance
policy.
169. While waiting for a bus, a man decided to go
into a bar to use the public phone. One of the
man's neighbors was seated at the bar when
the man entered. Although the man realized
that his neighbor was drunk, the man asked
the neighbor for a ride home. The neighbor
agreed and left with the man at once.
Because he was drunk, the neighbor lost con-
trol of his car and collided with a car driven
by another driver, injuring the other driver
and the man and damaging the other driver's
car.
The man asserts a negligence claim for his
injuries against his neighbor in a jurisdiction
that applies the all-or-nothing rule of con-
tributory negligence. Which of the following
arguments would be likely to provide the
neighbor with an effective defense to that
claim?
The man was contributorily negligent in
accepting a ride from his neighbor
when he knew his neighbor was drunk.
The man assumed the risk by accepting
a ride from his neighbor when he knew
his neighbor was drunk.
It did not matter that the man knew his
neighbor was drunk.
The man was contributorily negligent
and assumed the risk by accepting the
ride when he knew his neighbor was
drunk.
170. The Dartmouth Investor is a monthly publica-
tion of interest primarily to persons who deal
in the purchase and sale of historic buildings
as an investment. It is read by approximately
1,000 subscribers each month. An issue of
The Dartmouth Investor contained an article
about the recent sale of Nixonia, an old
house that had once been owned by a United
States president. The article stated that
Nixonia had been purchased by the plaintiff
for $1,450,000. It described the plaintiff as a
bank president earning a salary of $200,000
per year and stated that she had purchased
Nixonia with part of the $1 million fortune
that she inherited from her mother.
The plaintiff asserted a claim for invasion of
privacy against The Dartmouth Investor on
the ground that The Dartmouth Investor
appropriated her identity by publishing the
article about her without her permission.
Which of the following would be The Dart-
mouth Investor's most effective argument in
defense?
(A) Information about the purchaser of
Nixonia was of interest to readers of
The Dartmouth Investor.
690 FINZ MULTISTATE METHOD
(B) The article about the plaintiff did not
enrich The Dartmouth Investor because
the plaintiff was not a celebrity.
(C) The sale of Nixonia to the plaintiff was
a matter of public record.
(D) Publication of the article was not the
result of actual malice.
171. For many years, powdered cement used by a
factory was delivered in 90-pound sacks.
Recently, however, factory officials deter-
mined that it would be considerably less
expensive to purchase unbagged cement.
Since then, the factory has maintained a huge
bin containing unbagged powdered cement in
a yard outside its factory building. As a result
of the factory's change to unbagged cement,
the amount of cement dust in the air around
its factory has increased substantially.
A landowner lived in the area. After the fac-
tory began using unbagged cement, cement
dust from the factory's operation continually
settled on the cabin that the landowner occu-
pied. Although the dust did no physical harm
to the cabin or to the landowner, the land-
owner complained to officials of the factory
that the dust annoyed her. Because the fac-
tory received no other complaints from area
residents, however, it continued using
unbagged cement.
The landowner asserts a negligence claim
against the factory. Which of the following
would be the factory's most effective argu-
ment in defense?
(A) Changing from bagged cement to
unbagged cement resulted in substan-
tial financial savings to the factory.
(B) The factory's conduct was not a factual
cause of the landowner's discomfort
because no other residents complained
about the dust.
(C) The landowner assumed the risk by con-
tinuing to live in the area.
(D) The landowner sustained no damage as
a result of the factory's conduct.
172. In a negligence action by the plaintiff against
Able and Baker, the court found that the
plaintiff's injuries were proximately caused
by the combined negligence of Able and
Baker and that Able and Baker were jointly
and severally liable to the plaintiff in the sum
of $100,000. The court also found that in
producing the plaintiff's injury, Able was 40
percent at fault and Baker was 60 percent at
fault. The jurisdiction has a statute recogniz-
ing the right of contribution between joint
tortfeasors, and that contribution shall be
based on apportionment of fault.
After the entry of judgment, the plaintiff suc-
ceeded in collecting $100,000 from Able. In
an action for contribution by Able against
Baker, which of the following correctly states
the amount that Able is entitled to collect
from Baker?
(A) 0.
(B) $40,000 (40 percent of $100,000).
(C) $50,000 (50 percent of $100,000).
(D) $60,000 (60 percent of $100,000).
173. An employee was driving a pickup truck
owned by the company when he collided
with an automobile owned and operated by a
driver. A passenger in the driver's car subse-
quently asserted a claim against the company,
the employee, and the driver for injuries sus-
tained in the accident. At trial, the jury fixed
the amount of the passenger's damages and
found that the employee was 40 percent at
fault, the driver was 60 percent at fault, and
the passenger was not at fault. It was also
found that the employee was acting within
the scope of his duties as an employee of the
company when the accident occurred. In issu-
ing a judgment for the passenger, the court
held that the employee and the driver were
jointly and severally liable for the passen-
ger's injuries and that the company was
vicariously liable for the employee's tort. The
jurisdiction had statutes that adopted pure
comparative negligence and recognized a
right of contribution between joint tortfea-
sors.
TORTS QUESTIONS 691
In enforcing the judgment, the plaintiff suc-
ceeded in collecting $100,000 from the com-
pany. If the company asserts a claim against
the employee seeking compensation for the
company's payment to the employee, the
company is entitled to recover
(A) nothing, because the company was
found to be vicariously liable for the
employee's tort.
(B) $40,000 as partial indemnity.
(C) $50,000 as contribution.
(D) $100,000 as complete indemnity.
174. A biker was riding her bicycle in a reason-
able manner when she was struck by a car
negligently driven by a driver. As a result,
the biker was thrown to the ground, breaking
her left leg. A moment later, while lying in
the road, the biker was struck by a car negli-
gently driven by a second driver, breaking
the biker's right leg.
If the biker asserts a claim against the second
driver, the second driver will be held liable
for damages resulting from
(A) the biker's broken right leg.
(B) the biker's broken right and left legs.
(C) the biker's broken right and left legs,
but only if the first driver's conduct
was foreseeable.
(D) neither leg.
175. As a result of a minor earthquake, the frame-
work of a building that the builder was erect-
ing on Pollard Street collapsed. When the
builder began the building, he knew that the
steel that he was using for that purpose was
of poor quality but decided to use it anyway.
If the steel had not been of poor quality, the
earthquake would not have caused the build-
ing to collapse.
A driver was employed by a gas company to
operate a gasoline truck. She had parked the
truck on Pollard Street in front of the build-
er's construction site moments before the
earthquake. When the building collapsed,
falling debris struck the truck, causing it to
rupture and causing its cargo of gasoline to
leak. A stream of gasoline that leaked from
the truck flowed for three blocks until it
reached Titus Street. There, unaware of the
presence of gasoline, a man tossed a lit ciga-
rette into the street. The cigarette caused the
gasoline to explode, injuring a woman stand-
ing nearby.
If the woman asserts a claim against the gas
company driver, alleging that it was negligent
for the driver to park a gasoline truck in front
of a construction site, which of the following
would be the driver's most effective argu-
ment in defense against the woman's claim?
(A) The builder's use of poor-quality steel
was a superseding cause of the wom-
an's injury.
(B) The explosion would not have occurred
if the man did not throw a lit cigarette
into the street.
(C) The driver could not have anticipated
that falling debris from the construc-
tion site would cause the truck to rup-
ture and leak.
(D) The explosion that injured the woman
was proximately caused by the earth-
quake.
176. The owner of a supermarket purchased an
automatic door-opener from its manufacturer.
The device included rubber step-plates that
were to be installed on the floor on both
sides of the door. When a person stepped on
one of the step-plates, the machine was
designed to swing the door away from him or
her. The manufacturer furnished detailed
installation instructions that contained the
following warning:
After installing step-plates, test by
stepping on one of them. If the
door swings toward you instead of
away from you, disconnect the
automatic door-opener at once and
make no further use of it until you
692 FINZ MULTISTATE METHOD
have called our hotline for further
directions.
The store owner hired a contractor to install
the automatic door-opener while the store
was closed for the night. The contractor read
the instructions furnished by the manufac-
turer but disregarded the above warning.
When he finished installing the device, he did
not test it by stepping on one of the step-
plates, but advised the store's night manager
that the job was complete. The following
morning when the store opened, a customer
entered to purchase a particular brand of soft
drink. When he was attempting to leave, he
stepped on the step-plate that the contractor
had installed. Because of a short circuit in the
step-plate, the door swung toward him, strik-
ing and injuring his face.
The customer asserted a claim against the
manufacturer on the ground that the step-
plate was defective when sold by the manu-
facturer. Which of the following would be the
manufacturer's most effective argument in
defense?
(A) It was not foreseeable that a person
installing the automatic door-opener
would disregard the warning contained
in the instructions.
(B) The manufacturer did not act unreason-
ably in designing or manufacturing the
automatic door opener or in furnishing
the instructions that came with them.
(C) The customer was not a purchaser of the
automatic door-opener.
(D) The store owner was negligent in select-
ing the contractor to install the auto-
matic door-opener.
177. When the plaintiff was divorced from her
husband, the court awarded custody of their
three-year-old son to the plaintiff. The plain-
tiff frequently permitted the boy to spend
weekends with her ex-husband at the home
of the ex-husband's father. One weekend,
while the boy was visiting with the
ex-husband, a friend of the plaintiff's phoned
her. The friend said that she heard that the
ex-husband was planning to remove the boy
from the state permanently.
Panicked, the plaintiff ran to the home of the
ex-husband's father and pounded on the door.
When the ex-husband's father came to the
door, the plaintiff demanded, in a loud voice,
that the ex-husband's father tell her where
her ex-husband and her son were. The
ex-husband's father knew that the ex-husband
had taken the boy to the movies and would
soon be returning. Because the plaintiff's
manner frightened him, however, the
ex-husband's father said that he had no idea
where they were or when they were coming
back and refused to talk to the plaintiff any
further.
As a result, the plaintiff became highly upset.
She visited her physician, who prescribed a
mild tranquilizer, but she remained nervous
until the ex-husband brought the boy to her
home that evening.
The plaintiff asserts a claim against her
ex-husband's father for intentional infliction
of emotional distress. The court should find
for the plaintiff
(A) because the plaintiff was treated by a
physician for mental suffering that
resulted from the ex-husband's father's
refusal to tell her where her
ex-husband and her son were.
(B) if it was unreasonable for the
ex-husband's father to refuse to tell the
plaintiff where her ex-husband and her
son were.
(C) only if the ex-husband's father was cer-
tain that refusing to tell the plaintiff
where her ex-husband and her son
were would cause the plaintiff to expe-
rience mental suffering.
(D) only if the reasonable person would
have known that refusing to tell the
plaintiff where her ex-husband and her
son were would cause the plaintiff to
experience mental suffering.
TORTS QUESTIONS 693
178. A homeowner hired a painter to paint the
outside of the homeowner's house. About
two hours after the painter had finished the
job and left, the homeowner noticed the
painter's ladder lying across the homeowner's
front lawn. The homeowner immediately
phoned the painter, asking him to remove the
ladder. The painter said he would come back
for the ladder but did not do so.
Two days later, a government employee was
walking across the homeowner's lawn while
delivering mail. On several occasions in the
past, the homeowner had asked her to use the
sidewalk and not to walk on his lawn. The
homeowner saw the employee walking
toward the painter's ladder on his lawn but
did not warn the employee because he
believed that she saw it. Although the lawn
had recently been mowed and the ladder was
in plain view, the employee did not see the
ladder and tripped over it, injuring her knee.
The jurisdiction applies the all-or-nothing
rule of contributory negligence.
If the government employee asserts a negli-
gence claim against the painter for damages
resulting from her injury, which of the fol-
lowing would be the painter's most effective
argument in defense?
(A) The ladder was in plain view.
(B) The employee was trespassing at the
time the accident occurred.
(C) The painter owed no duty to licensees of
the homeowner.
(D) The homeowner was negligent in not
warning the employee about the ladder.
179. One evening in Able's tavern, a 17-year-old
girl drank alcoholic beverages that Able sold
her. The girl then left and went to Baker's
tavern, where she drank alcoholic beverages
that Baker sold her. When the girl left
Baker's tavern, she attempted to ride home
on her scooter. Because the girl was intoxi-
cated, she struck and injured a pedestrian.
The pedestrian subsequently asserted claims
against Able and Baker under a state law that
provides as follows: "If a minor under the
age of 20 years injures another while intoxi-
cated, any person who sold said minor the
alcohol that resulted in said minor's intoxica-
tion shall be liable to the injured person."
The amount of alcohol that Able sold the girl
would have made her intoxicated even if
Baker sold the girl no alcohol at all, and the
amount of alcohol that Baker sold the girl
would have made the girl intoxicated even if
Able sold the girl no alcohol at all. Which of
the following statements is most correct?
(A) Able did not cause the pedestrian's
injury because Baker subsequently sold
the girl enough alcohol to make her
intoxicated.
(B) Baker did not cause the pedestrian's
injury because Able had previously
sold the girl enough alcohol to make
her intoxicated.
(C) Neither Able nor Baker caused the
injury.
(D) Both Able and Baker caused the injury.
180. A landowner hired a professional architect to
draw plans for a two-story residence to be
constructed on the landowner's realty. The
plans that the architect prepared called for a
staircase to be supported by a single concrete
pillar. The landowner then hired a licensed
building contractor to construct a house in
accordance with the architect's design. Upon
examining the plans, the contractor told the
landowner that she did not think that one
pillar would provide sufficient support for the
staircase. When the landowner discussed the
contractor's objection with the architect,
however, the architect insisted that one pillar
would be sufficient. The landowner told this
to the contractor and convinced the contractor
to rely on the architect's plan.
The contractor completed the building as
agreed and turned it over to the landowner on
April 1. Two weeks later, the landowner
694 FINZ MULTISTATE METHOD
hired a mover to move a piano onto the sec-
ond floor of the house. While the mover was
carrying the piano up the staircase, the stair-
case collapsed, causing the mover to sustain
injury. If the staircase had been supported by
two columns, it would not have collapsed.
If the mover asserts a negligence claim
against the architect, which of the following
would be the architect's most effective argu-
ment in defense?
(A) It was reasonable to support the stair-
case with only one pillar.
(B) The architect owed the mover no duty
since the architect was employed by
the landowner.
(C) The contractor had the last clear chance
to avoid the accident.
(D) The use of a single pillar to support the
staircase was a matter exclusively
within the architect's professional
judgment as an architect.
181. A man was obviously intoxicated when he
entered a bartender's tavern one night and
ordered a drink of Old Wesley alcoholic
liquor. A statute in the jurisdiction prohibits
serving alcoholic liquor to any intoxicated
person. The bartender knew that the man was
intoxicated, but because the man was a good
customer, the bartender opened a new bottle
of Old Wesley and poured him some of it.
After drinking the liquor, the man left the
tavern and began driving home.
The liquor that the bartender served the man
was manufactured by Wesley. Before the
liquor left Wesley's factory, an angry
employee added a poison to it that could not
have been discovered by reasonable inspec-
tion. While the man was driving in a reason-
able manner, the poison caused him to die.
As a result, the man's car struck a pedestrian,
injuring her.
If the pedestrian asserts a claim against the
bartender based on the bartender's violation
of the above statute, which of the following
would be the bartender's most effective argu-
ment in defense against that claim?
(A) The bartender did not serve the man
enough liquor to make him intoxicated.
(B) The statute was not meant to prevent
people from drinking liquor that had
been poisoned.
(C) Serving Old Wesley alcoholic liquor to
the man was not a cause of the pedes-
trian's injuries.
(D) The angry employee's conduct was a
superseding cause of the pedestrian's
injuries.
182. A company manufactures belt trucks, which
are small, open-motor vehicles equipped with
conveyor belts and used by airlines for han-
dling baggage. The company's officials are
aware that persons who maintain belt trucks
frequently set the belt idle above 25. They
are also aware that this can cause the belt
truck to lurch forward when the belt is acti-
vated unless it is equipped with an accelera-
tion suppressor. For this reason, the
company's design calls for every belt truck to
be equipped with an acceleration suppressor.
Several months ago, the company learned
that because of a factory error, it had sold to
an airline a belt truck that was not equipped
with an acceleration suppressor. The com-
pany officials immediately notified the air-
line, offering to install the acceleration
suppressor without charge. The airline never
responded to the notice.
Two months later, the airline went out of
business and sold the belt truck to a second
airline. An independent contractor hired by
the second airline to maintain the second air-
line's equipment set the belt idle above 25.
Subsequently, an employee of the second
airline attempted to activate the belt while
standing beside the belt truck. She was
injured when the belt truck lurched forward
and struck her.
TORTS QUESTIONS 695
The employee asserted a negligence claim
against the independent contractor. Which
one of the following additional facts or infer-
ences, if it was the only one true, would be
most likely to result in a judgment for the
independent contractor in a jurisdiction that
applies the all-or-nothing rule of contributory
negligence?
(A) Belt trucks are usually equipped with
acceleration suppressors.
(B) If the employee had been in the driver's
seat when she started the belt truck,
she would not have been injured.
(C) The omission of an acceleration sup-
pressor was a manufacturing defect in
the belt truck.
(D) The first airline failed to notify the sec-
ond airline about the need for an accel-
eration suppressor.
183. A company operated a manufacturing plant
just outside the town. Breezes frequently car-
ried fumes from the company's plant into the
town.
A homeowner's son developed a respiratory
illness as the result of an unusual reaction to
the fumes. The homeowner complained to the
company about his son's illness. When the
company responded by offering to buy the
homeowner's house, the homeowner refused.
The homeowner asserted a public nuisance
claim on behalf of his son in which he sought
an order directing the company to eliminate
the fumes. Which of the following would be
the company's most effective argument in
response to this claim?
(A) The claim is not for special damages.
(B) The son's illness was the result of an
unusually sensitive reaction to the
fumes.
(C) The homeowner assumed the risk by
refusing to sell the property to the
company.
(D) The fumes did not violate state pollution
laws.
184. The manufacturer made a product known as
Super Follicle, which was sold over the
counter for the treatment of dandruff and dry
scalp conditions. A doctor purchased a bottle
of Super Follicle at a drugstore. A statement
on the label read, "This product will not
harm normal scalp or hair." The doctor used
the product as directed. Because of a scalp
condition making him allergic to one of the
ingredients, the product irritated his scalp,
causing him much pain and discomfort.
In an action by the doctor against the drug-
store, which of the following would be the
doctor's most effective argument?
(A) Any negligence by the manufacturer is
imputed to the drugstore.
(B) The product was defective as labeled.
(C) The drugstore breached an express war-
ranty.
(D) A drugstore is under a special duty to be
aware of possible allergic reactions to
products that it sells.
185. A roofer who was building a house on his
own property had posted a sign that said,
"No Trespassing." He was working on the
framework of his roof when he found that he
had brought the wrong board onto the roof
with him. Without looking to see if anyone
was around, he tossed the board to the
ground.
A lumberjack was assigned to deliver lumber
on the street where the roofer was building
the house. The roofer had not ordered lum-
ber, but when the lumberjack saw the roofer
working on the roof of an unfinished house,
he incorrectly assumed that the roofer was
the person to whom he was supposed to
deliver the lumber. He parked his truck at the
curb and was walking across the roofer's
property toward the unfinished house to talk
to the roofer about the delivery when he was
struck in the head by the board thrown by the
696 FINZ MULTISTATE METHOD
roofer. The lumberjack cried out in pain and
then fell to the ground, unconscious and
bleeding. The roofer saw it happen but
merely shrugged and continued working.
A moment later, a passerby who had seen
what happened called an ambulance. When it
arrived, the lumberjack was still unconscious.
The ambulance driver loaded the lumberjack
into the ambulance and began driving to the
hospital. Because of the ambulance driver's
negligent driving, the ambulance struck a
pole. The lumberjack was killed in the crash.
In a negligence action by the representative
of the lumberjack's estate against the roofer,
a court will most probably find the roofer
(A) liable for the lumberjack's death only if
the roofer's negligence was a proxi-
mate cause of the lumberjack's head
injury.
(B) liable for the lumberjack's head injury if
the roofer's negligence was a proxi-
mate cause of it, but not liable for the
lumberjack's death since the negli-
gence of the ambulance driver was an
intervening cause.
(C) liable for the lumberjack's head injury if
the roofer's negligence was a proxi-
mate cause of it, but not liable for the
lumberjack's death since the ambu-
lance accident was an intervening
cause of it.
(D) not liable for the lumberjack's death,
since the roofer's conduct was not a
factual cause of the lumberjack's
death.
186. A bird breeder purchased a sealed 50-pound
package labeled "Pogue Seeds" from the
dealer, who was in the business of selling
supplies for bird and livestock breeders. The
dealer had bought the sealed package from a
wholesaler of seed and grain. Because of
negligence at the wholesaler's plant, the
seeds in the package were poisonous. The
breeder ate some of the Pogue seeds while he
was mixing the bird food and became ill sev-
eral hours later as a result.
Assume that the breeder is successful in his
action against the dealer. If the dealer subse-
quently asserts a claim against the wholesaler
for total indemnification, the court will prob-
ably find for
(A) the wholesaler, since the dealer is a joint
tortfeasor.
(B) the wholesaler, unless the breeder named
the wholesaler in the original action.
(C) the dealer, if the dealer was free from
fault.
(D) the dealer, but only if a statute in the
jurisdiction creates such a right.
187. Automobiles driven by Alvarez and Bosco
collided in an intersection. Alvarez and
Bosco asserted negligence claims against
each other for damage to their vehicles. In
addition, a passenger in Alvarez's car at the
time of the accident asserted a negligence
claim against both of them for her personal
injuries. The claims were all consolidated and
tried together. In answer to specific questions
posed by the court, the jury found that the
accident was 60 percent the fault of Alvarez
and 40 percent the fault of Bosco. In addi-
tion, the jury found that damage to Alvarez's
car amounted to $1,000, that damage to
Bosco's car amounted to $10,000, and that
damage to the passenger amounted to
$100,000. The court ruled that Alvarez and
Bosco were jointly and severally liable for
the passenger's injuries.
The jurisdiction had a statute that provided
that "In any negligence action, a plaintiff's
recovery shall not be barred by that plain-
tiff's fault, but the recovery of said plaintiff
shall be diminished in proportion to such
plaintiff's fault unless that plaintiff's fault
shall be greater than that of the defendant,
and in such event the plaintiff's recovery
shall be barred." Which of the following cor-
rectly states the sum that the passenger is
entitled to receive from Bosco?
TORTS QUESTIONS 697
(A) $60,000 (60 percent of $100,000).
(B) $40,000 (40 percent of $100,000).
(C) $100,000.
(D) 0.
188. A minister delivered the benediction at the
year's first meeting of the City Council of
Gotham City. The following day, the Gotham
Globe, a daily newspaper, printed an article
about the meeting. The article referred to the
minister's speech as "inspiring, considering
the fact the minister suffers from leprosy."
After seeing the article, the minister sued the
newspaper for defamation.
The Gotham Globe moved to dismiss the
minister's action on the grounds that his
complaint contained no allegation of damage.
Which of the following additional facts or
inferences, if it was the only one true, would
be most helpful to the minister in opposing
the motion to dismiss?
(A) Leprosy is a loathsome disease.
(B) The minister was so upset upon reading
the Gotham Globe's statement about
him that he became physically ill.
(C) Editors of the Gotham Globe disliked
the minister.
(D) The minister is neither a public official
nor a public figure.
189. The company manufactures several kinds of
puddings, which are marketed in packages
labeled "Feedbags." Each package consists of
an aluminum can containing pudding and a
plastic spoon. The aluminum can is equipped
with an "easy-open" lid that can be removed
by pulling an aluminum ring fastened to the
top of the can.
One morning, on his way to work, a man
purchased a package of Feedbags from the
grocery store. Later that day, while eating
lunch, the man opened the package, removed
the lid from the aluminum can, and began
eating the contents with a spoon. After con-
suming more than half the product, the man
noticed parts of a cockroach mixed with the
pudding.
In an action by the man against the company,
which of the following additional facts or
inferences, if it were the only one true, would
provide the company with its most effective
defense?
(A) The company did not act unreasonably
in manufacturing, packaging, or mar-
keting the product purchased by the
man.
(B) The man sustained no injury as a result
of the presence of parts of a cockroach
in the product.
(C) The company complied with all statu-
tory requirements for quality control in
the production of Feedbags.
(D) The man purchased the product on the
recommendation of a sales clerk at the
grocery store.
190. One night, police officers received a message
that a burglary was in progress at a grocery
store. Rushing to the location, they discov-
ered that the back door of the store was open.
Entering cautiously, they saw two burglars
hiding in the storage room. In the ensuing
attempt to affect an arrest in the dark, the
officers knocked over several stacks of mer-
chandise, including cases of bottled soda-pop
manufactured by the company.
When the stacked groceries fell over, a bottle
broke, and a fragment of flying glass struck
one of the officers, injuring him. If the
officer institutes an action against the store,
the officer will
(A) win, since the fact that he was attempt-
ing to apprehend a criminal who was
burglarizing the store made him an
invitee.
(B) win, if, but only if, the store's conduct
was a physical cause of the harm.
(C) lose, since he was a bare licensee at the
time the injury occurred.
698 FINZ MULTISTATE METHOD
(D) lose, if it was unforeseeable that persons
would be running around the store-
room in the dark.
191. A pilot was a commercial pilot who operated
a package air-delivery service. Having been
hired to deliver a parcel to an airport located
300 miles away, he had his plane filled with
fuel supplied by an oil company. The fuel
that was put into the pilot's fuel tank had
been contaminated before leaving the oil
company's refinery, but neither the pilot nor
the oil company knew about the contamina-
tion. After the pilot had flown 100 miles
from the airport, the contaminants in the fuel
caused his engine to fail. Ultimately, the pilot
had to make an emergency landing.
The pilot was injured in the emergency land-
ing and asserted a negligence claim against
the oil company for his injuries. If it were the
only one true, which of the following addi-
tional facts would be most likely to result in
a judgment for the pilot?
(A) The contaminated fuel furnished by the
oil company was unreasonably danger-
ous.
(B) The reasonable oil refining company
would not sell fuel that it knew to be
contaminated.
(C) A reasonable inspection of the fuel
before it left the oil company's refinery
would have revealed that it was con-
taminated.
(D) Contaminated airplane fuel defeats the
reasonable expectations of the reason-
able consumer.
192. While waiting for a bus, a man decided to go
into a bar to use the public phone. One of the
man's neighbors was seated at the bar when
the man entered. Although the man realized
that his neighbor was drunk, the man asked
the neighbor for a ride home. The neighbor
agreed and left with the man at once.
Because he was drunk, the neighbor lost con-
trol of his car and collided with a car driven
by another driver, injuring the other driver
and the man and damaging the other driver's
car.
The other driver asserted a trespass to chattel
claim against the neighbor for damage to his
car. The court should find for the other driver
(A) if the possibility that the neighbor would
collide with another vehicle would
have been apparent to the reasonable
sober person.
(B)
only if the possibility that the neighbor
would collide with another vehicle was
apparent to the neighbor.
(C) because the neighbor intended to drive
his car, and an unauthorized interfer-
ence with the other driver's chattel
resulted.
(D) only if the neighbor wanted to collide
with another car or knew that he
would do so.
193. A driver was employed by a gas company to
operate a gasoline truck. She had parked the
truck on Deck Street moments before an
earthquake. When the nearby buildings col-
lapsed, falling debris struck the truck, causing
it to rupture and causing its cargo of gasoline
to leak. The gasoline soon caught fire and
injured a woman standing nearby.
If the woman asserts a claim against the gas
company, alleging that the gas company is
liable for the negligence of the driver, which
one of the following additional facts or infer-
ences, if it was the only one true, would be
most likely to result in a judgment for the gas
company?
(A) The driver parked the truck on Deck
Street so that she could keep an
appointment with her personal physi-
cian.
(B) A statute in the jurisdiction prohibited
parking gasoline trucks on Deck Street.
(C) A gas company rule prohibited parking
any company truck on a public street
TORTS QUESTIONS 699
while the truck was loaded with gaso-
line.
(D) The person employed by the gas com-
pany to supervise the driver had spe-
cifically instructed the driver not to
park on Deck Street.
194. The owner of a supermarket purchased an
automatic door-opener from its manufacturer.
The device included rubber step-plates that
were to be installed on the floor on both
sides of the door. When a person stepped on
one of the step-plates, the machine was
designed to swing the door away from him or
her. The manufacturer furnished detailed
installation instructions that contained the
following warning:
After installing step-plates, test by
stepping on one of them. If the
door swings toward you instead of
away from you, disconnect the
automatic door-opener at once and
make no further use of it until you
have called our hotline for further
directions.
The store owner hired a contractor to install
the automatic door-opener while the store
was closed for the night. The contractor read
the instructions furnished by the manufac-
turer but disregarded the above warning.
When he finished installing the device, he did
not test it by stepping on one of the step-
plates but advised the store's night manager
that the job was complete. The following
morning when the store opened, a customer
entered to purchase a particular brand of soft
drink. When he was attempting to leave, he
stepped on the step-plate that the contractor
had installed. Because of a short circuit in the
step-plate, the door swung toward him, strik-
ing and injuring his face.
In a claim by the customer against the con-
tractor, which of the following would be the
customer's most effective argument?
(A) The contractor's liability is established
by res ipsa loquitur.
(B) It was unreasonable for the contractor to
disregard the warning contained in the
instructions furnished by the manufac-
turer.
(C) The automatic door-opener was installed
in a way that made it unfit for ordinary
use.
(D) The short circuit in the step-plate made
the automatic door-opener defective.
195. A driver was driving her automobile on
Ocean Road in the rain when she rounded a
bend and saw a cow standing directly in her
path. She immediately jammed on her brakes
and pulled the steering wheel to the right in
an attempt to avoid striking the cow. As a
result, she lost control of her car, which skid-
ded off the road and into the homeowner's
yard.
In an action by the homeowner against the
driver for negligence, which of the following
arguments would be most effective as a
defense for the driver?
(A) Her conduct did not result in damage.
(B) She was not required to act reasonably
because she was confronted by an
emergency.
(C) She was privileged by the doctrine of
necessity.
(D) It was foreseeable that users of Ocean
Road would deviate onto adjacent pri-
vate land in connection with their use
of the road.
196. A truck driver was injured when he was hit
by a falling beam at a construction site. The
truck driver was loaded into an ambulance
and rushed to the hospital. However, due to
the ambulance driver's negligence, the ambu-
lance slid off the road and hit a tree, killing
the truck driver.
If the representative of the truck driver's
estate instituted an appropriate action against
the ambulance driver under the state's
700 FINZ MULTISTATE METHOD
"wrongful death" statute, the court would be
most likely to find for
(A) the ambulance driver, if the falling beam
was foreseeable.
(B) the ambulance driver, since a rescuer is
not under an obligation to use reason-
able care in the face of an emergency.
(C) the truck driver's estate, since the ambu-
lance driver's negligence was a proxi-
mate cause of the truck driver's death.
(D) the truck driver's estate, unless the
owner of the construction site is found
to be liable for the truck driver's death.