TORT LAW EXAM QUESTIONS WITH
COMPLETE SOLUTIONS
Name a few things that are not given special consideration under the reasonable person
test. - Answer- o Insanity
o Individuals with low intellect, poor judgment, clumsiness
o Old age (Roberts v. Ring - old man driving held to reasonable person standard)
How does one calculate risk? - Answer- CONSIDER:
(1) THE ACT OR OMISSION ITSELF
(a) balance the social interests in the case to see if there was neglligence
(2) FORESEEABLE RISKS OF INJURY
(a) A reasonable man would act with reference to the average circumstances
(3) EXTENT OF THESE RISKS
(a) How significant were they?
(b) How many people will be affected?
(4) LIKELIHOOD THE RISKS WILL OCCUR
(5) AVAILABLE ALTERNATIVES
(6) COST OF REDUCING RISK
(a) Who is the cheapest cost avoider?
(i) Who has the most knowledge?
(ii) Who can best spread the costs?
When is a risk unreasonably negligent? - Answer- NEGLIGENCE = UNREASONABLY
GREAT RISK W/ UNREASONABLY PROBABLE INJURIOUS CONSEQUENCES
(1) Magnitude of Risk
(2) Value or importance of the principal object (the person or thing exposed to risk)
(3) Value or importance of the collateral object (the reason that D took the risk)
(4) Utility of the risk (probability that the collateral object will be attained by taking the
risk to the principal)
(5) Necessity of the risk (probability that the collateral object would not have been
Attained without taking the risk)
What is the Hand formula? - Answer- (Burden of taking added precautions) <
(Probability of injury occurring)(Cost of the injury)
When is there a heightened standard of care? - Answer- • Common carriers
o Andrews v. United Airlines - responsible for any, even the slightest, negligence and is
required to do all that human care, vigilance, and foresight reasonably can do under all
the circumstances
,How is custom used in evaluating the reasonable standard of care? - Answer- • Majority
Rule: Custom is not controlling. You cannot use custom evidence for determining
reasonableness.
o Sometimes custom is unreasonable
• Third Restatement - Differs from majority rule: Compliance with custom is evidence
that the actor's conduct is not negligent but does not preclude a finding of negligence,
while a departure from custom in a way that increases risk is evidence of the actor's
negligence but does not require a finding of negligence
How is custom used in evaluating the reasonable standard of care in medical
malpractice? - Answer- • Standard: A doctor must use the degree of care and skill which
of the average qualified practitioner, taking into account advances in the profession
o Majority Rule: Abandon the localized standard
o Exception: May have locality arguments when it comes to equipment and resources
• If one school of medical experts (not a small minority) has approved a procedure even
if a second group recommends a different approach - defense to negligence
• Duty of disclosure (Canterbury v. Spence - doctor didn't tell patient 1% chance of
paralysis)
o Duty to disclose material risks, or risks that a material person would be likely to attach
significance to the risk in deciding whether or not to forego the procedure
o Test for causal connection: Whether a prudent person in the patient's position would
have decided (have/not have the procedure) if suitably informed of all risks
o No duty to ensure comprehension
Define Negligence Per Se - Answer- DEFINITION: Noncompliance with a statute is
negligence per se
RESTATEMENT: An actor is negligent if, without excuse, the actor violates a statute
that is designed to protect against the type of accident the actor's conduct causes, and if
the accident victim is within the class of persons the statute is designed to protect
What are the elements of negligence per se? - Answer- ELEMENTS:
(1) Statute protects against the type of harm that occurred
(2) Plaintiff is in the class of persons protected by the statute
Have to have a causal link between violating the statute and the harm caused
How does one create a private right of action? - Answer- CREATING A PRIVATE
RIGHT OF ACTION: ● The legislature, not the courts, must provide for a private cause
of action for statutory violations. Without a specific evidence of legislative intent to
provide a private cause of action for violation of a statute, courts cannot infer one.
(1) Whether recognition of a private right of action would promote the legislative
purpose
(2) Whether creation of such a right would be consistent with the legislative scheme
What is a dram shop statute? - Answer- ■ All states have some form of dram shop laws-
it is a major form of tort liability.
, ■ General rule: bar can be held liable for negligence for defendant's acts if continue to
serve defendant even though he/she was already intoxicated.
■ Allows third parties to recover for injuries from drunks by suing the bar. Does not
typically involve the drunks themselves suing the bar.
■ Over-serving alone does not make bar liable. Have to prove that bar knew that person
was drunk and continued to serve them anyway.
■ New generation of dram shop cases: homeowners, frats/sororities, sports stadiums,
private office parties
What is Federal Preemption - Answer- ■ Most torts cases are based on state law-but
have some federal laws that supplant existing state law-sometimes see federal pre-
emption giving certain classes immunity from suit
■ Federal Torts Claims Act-allows parties to sue the government (limited waiver of
sovereign immunity) but cannot sue in times of combat, emergency
● Exception: many times, federal government has discretion to do whatever it has the
power to do and is immune from suit (ex. Waco raid, Janet Reno/DOJ)
● Exception: Feres Doctrine: FTCA bars military personnel from suing the military in
peacetime or wartime for even something like medical malpractice because everything
the military does is part of combat function-can't sue the US military.
Define Res Ipsa Loquitur - Answer- Definition: The thing speaks for itself
Used when there is a paucity of evidence (typical cases: falling bodies, medical
malpractice)
What are the elements of res ipsa loquitur? - Answer- (1) The event must be of a kind
which ordinarily does not occur in the absence of someone's negligence,
(2) It must be caused by an agency or instrumentality within the exclusive control of the
defendant, and
• Colmenares Vivas - A defendant with a non-delegable duty of care to maintain an
instrument in a safe condition has exclusive control over it for the purposes of applying
res ipsa loquitur
o Non-Delegable Duty: Whether the responsibility is so important to the community that
it should not be transferred to another
• Ybarra - Even when there are multiple possible defendants that are part of a
homogeneous group (here, doctors and nurses in the operating rule) but they were in
exclusive control
• McGonigal - The whole grenade was handled by many people but the fuse was
handled ONLY by he manufacturer; the manufacturer was in exclusive control
(3) It must not have been due to any voluntary action or contribution on the part of the
plaintiff
• Narrow Better standard: The acts of the defendant were the principal, most probable
cause of the injury. If P may have been partially negligent, do a standard comparative
negligence analysis
COMPLETE SOLUTIONS
Name a few things that are not given special consideration under the reasonable person
test. - Answer- o Insanity
o Individuals with low intellect, poor judgment, clumsiness
o Old age (Roberts v. Ring - old man driving held to reasonable person standard)
How does one calculate risk? - Answer- CONSIDER:
(1) THE ACT OR OMISSION ITSELF
(a) balance the social interests in the case to see if there was neglligence
(2) FORESEEABLE RISKS OF INJURY
(a) A reasonable man would act with reference to the average circumstances
(3) EXTENT OF THESE RISKS
(a) How significant were they?
(b) How many people will be affected?
(4) LIKELIHOOD THE RISKS WILL OCCUR
(5) AVAILABLE ALTERNATIVES
(6) COST OF REDUCING RISK
(a) Who is the cheapest cost avoider?
(i) Who has the most knowledge?
(ii) Who can best spread the costs?
When is a risk unreasonably negligent? - Answer- NEGLIGENCE = UNREASONABLY
GREAT RISK W/ UNREASONABLY PROBABLE INJURIOUS CONSEQUENCES
(1) Magnitude of Risk
(2) Value or importance of the principal object (the person or thing exposed to risk)
(3) Value or importance of the collateral object (the reason that D took the risk)
(4) Utility of the risk (probability that the collateral object will be attained by taking the
risk to the principal)
(5) Necessity of the risk (probability that the collateral object would not have been
Attained without taking the risk)
What is the Hand formula? - Answer- (Burden of taking added precautions) <
(Probability of injury occurring)(Cost of the injury)
When is there a heightened standard of care? - Answer- • Common carriers
o Andrews v. United Airlines - responsible for any, even the slightest, negligence and is
required to do all that human care, vigilance, and foresight reasonably can do under all
the circumstances
,How is custom used in evaluating the reasonable standard of care? - Answer- • Majority
Rule: Custom is not controlling. You cannot use custom evidence for determining
reasonableness.
o Sometimes custom is unreasonable
• Third Restatement - Differs from majority rule: Compliance with custom is evidence
that the actor's conduct is not negligent but does not preclude a finding of negligence,
while a departure from custom in a way that increases risk is evidence of the actor's
negligence but does not require a finding of negligence
How is custom used in evaluating the reasonable standard of care in medical
malpractice? - Answer- • Standard: A doctor must use the degree of care and skill which
of the average qualified practitioner, taking into account advances in the profession
o Majority Rule: Abandon the localized standard
o Exception: May have locality arguments when it comes to equipment and resources
• If one school of medical experts (not a small minority) has approved a procedure even
if a second group recommends a different approach - defense to negligence
• Duty of disclosure (Canterbury v. Spence - doctor didn't tell patient 1% chance of
paralysis)
o Duty to disclose material risks, or risks that a material person would be likely to attach
significance to the risk in deciding whether or not to forego the procedure
o Test for causal connection: Whether a prudent person in the patient's position would
have decided (have/not have the procedure) if suitably informed of all risks
o No duty to ensure comprehension
Define Negligence Per Se - Answer- DEFINITION: Noncompliance with a statute is
negligence per se
RESTATEMENT: An actor is negligent if, without excuse, the actor violates a statute
that is designed to protect against the type of accident the actor's conduct causes, and if
the accident victim is within the class of persons the statute is designed to protect
What are the elements of negligence per se? - Answer- ELEMENTS:
(1) Statute protects against the type of harm that occurred
(2) Plaintiff is in the class of persons protected by the statute
Have to have a causal link between violating the statute and the harm caused
How does one create a private right of action? - Answer- CREATING A PRIVATE
RIGHT OF ACTION: ● The legislature, not the courts, must provide for a private cause
of action for statutory violations. Without a specific evidence of legislative intent to
provide a private cause of action for violation of a statute, courts cannot infer one.
(1) Whether recognition of a private right of action would promote the legislative
purpose
(2) Whether creation of such a right would be consistent with the legislative scheme
What is a dram shop statute? - Answer- ■ All states have some form of dram shop laws-
it is a major form of tort liability.
, ■ General rule: bar can be held liable for negligence for defendant's acts if continue to
serve defendant even though he/she was already intoxicated.
■ Allows third parties to recover for injuries from drunks by suing the bar. Does not
typically involve the drunks themselves suing the bar.
■ Over-serving alone does not make bar liable. Have to prove that bar knew that person
was drunk and continued to serve them anyway.
■ New generation of dram shop cases: homeowners, frats/sororities, sports stadiums,
private office parties
What is Federal Preemption - Answer- ■ Most torts cases are based on state law-but
have some federal laws that supplant existing state law-sometimes see federal pre-
emption giving certain classes immunity from suit
■ Federal Torts Claims Act-allows parties to sue the government (limited waiver of
sovereign immunity) but cannot sue in times of combat, emergency
● Exception: many times, federal government has discretion to do whatever it has the
power to do and is immune from suit (ex. Waco raid, Janet Reno/DOJ)
● Exception: Feres Doctrine: FTCA bars military personnel from suing the military in
peacetime or wartime for even something like medical malpractice because everything
the military does is part of combat function-can't sue the US military.
Define Res Ipsa Loquitur - Answer- Definition: The thing speaks for itself
Used when there is a paucity of evidence (typical cases: falling bodies, medical
malpractice)
What are the elements of res ipsa loquitur? - Answer- (1) The event must be of a kind
which ordinarily does not occur in the absence of someone's negligence,
(2) It must be caused by an agency or instrumentality within the exclusive control of the
defendant, and
• Colmenares Vivas - A defendant with a non-delegable duty of care to maintain an
instrument in a safe condition has exclusive control over it for the purposes of applying
res ipsa loquitur
o Non-Delegable Duty: Whether the responsibility is so important to the community that
it should not be transferred to another
• Ybarra - Even when there are multiple possible defendants that are part of a
homogeneous group (here, doctors and nurses in the operating rule) but they were in
exclusive control
• McGonigal - The whole grenade was handled by many people but the fuse was
handled ONLY by he manufacturer; the manufacturer was in exclusive control
(3) It must not have been due to any voluntary action or contribution on the part of the
plaintiff
• Narrow Better standard: The acts of the defendant were the principal, most probable
cause of the injury. If P may have been partially negligent, do a standard comparative
negligence analysis
