Torts — UBE practice questions

A public-figure plaintiff suing for defamation must prove the defendant acted with:

1. Actual malice: knowledge of falsity or reckless disregard
2. Simple negligence in verifying the underlying statement
3. Intent to cause severe emotional distress only
4. Gross indifference to the plaintiff's personal feelings

Answer: A — Actual malice: knowledge of falsity or reckless disregard

A) Correct — New York Times v. Sullivan requires public officials and public figures to prove actual malice by clear and convincing evidence. B) Negligence is the private-plaintiff standard. C) IIED is a distinct tort with different elements. D) 'Gross indifference to feelings' is not the defamation fault standard.

The four elements of a common-law negligence claim are:

1. Duty, breach, causation, and damages
2. Intent, harm, foreseeability, and contract
3. Knowledge, action, reliance, and loss
4. Duty, malice, harm, and privity

Answer: A — Duty, breach, causation, and damages

A) Correct — negligence requires duty, breach of the standard of care, actual and proximate causation, and damages. B) Intent is not required for negligence. C) That mixes elements of misrepresentation. D) Malice is not a negligence element, and privity is not required post-MacPherson.

A company used a local athlete's photograph in a print advertisement without permission. He sues. His STRONGEST privacy theory is

1. intrusion upon seclusion, because the photograph was taken without his knowledge
2. false light, because the ad implies facts about him that are untrue
3. appropriation of his name or likeness for the defendant's commercial advantage
4. public disclosure of private facts, because his image was broadly circulated

Answer: C — appropriation of his name or likeness for the defendant's commercial advantage

C) Correct — using a person's identity for commercial benefit without consent is the appropriation tort, and no falsity or secrecy is required. A) Intrusion requires an invasion of a private place or affairs. B) False light needs a highly offensive false implication publicized to the public. D) That tort requires disclosure of genuinely private, non-newsworthy facts.

Under strict products liability, a plaintiff must prove that a product was:

1. Sold with a plausible instruction manual by the manufacturer only
2. Defective when it left the defendant's control, causing plaintiff's injury
3. Purchased at a discount from a licensed authorized dealer only
4. Advertised in national media within one year of the incident

Answer: B — Defective when it left the defendant's control, causing plaintiff's injury

A) An instruction manual is not the standard. B) Correct — Restatement 2d § 402A requires a defect present when the product left defendant's hands, making it unreasonably dangerous, and causing plaintiff's harm. C) Purchase source is irrelevant. D) Advertising is irrelevant.

Punitive damages are ordinarily available only where the defendant's conduct was:

1. Merely negligent under an ordinary-care standard
2. Willful, wanton, malicious, or grossly reckless
3. Any tortious conduct causing actual damages
4. An ordinary breach of a commercial contract

Answer: B — Willful, wanton, malicious, or grossly reckless

A) Ordinary negligence does not support punitive damages. B) Correct — punitives require a heightened mental state and are constrained by Due Process (BMW v. Gore, State Farm v. Campbell) to modest ratios. C) Not every tortious act supports punitives. D) Contract law generally bars punitive damages absent an independent tort.

Under negligent infliction of emotional distress (NIED) via the bystander theory, plaintiff must generally show:

1. Close family relationship, presence at the scene, and observation
2. Only that plaintiff heard about the incident from a mutual friend
3. A written contract with the injured party's household
4. Presence within the state boundary at the same time as the injury

Answer: A — Close family relationship, presence at the scene, and observation

A) Correct — Dillon v. Legg (as narrowed by Thing v. La Chusa) requires a close relationship, contemporaneous sensory perception of the event, and resulting serious emotional distress. B) Learning after the fact does not qualify. C) A contract is irrelevant. D) State-wide presence is insufficient.

Under the eggshell-plaintiff rule, a tortfeasor is liable for:

1. Only the injuries an average healthy plaintiff would have suffered
2. A percentage share reduced by the plaintiff's pre-existing condition
3. Only the medical costs actually paid by the plaintiff at trial
4. The full extent of harm even if the plaintiff was unusually fragile

Answer: D — The full extent of harm even if the plaintiff was unusually fragile

A) Average plaintiff is not the measure. D) Correct — the defendant takes the plaintiff as they find them and is liable for the full extent of unforeseeable harm caused by pre-existing conditions. C) Damages are not capped at paid costs. B) Pre-existing conditions do not reduce liability.

A driver crossed a double yellow line, violating a statute meant to protect motorists from head-on collisions, and struck an oncoming car. The plaintiff invokes negligence per se. Establishing the violation will

1. establish her entire prima facie case, including causation and the fact of damages
2. establish breach, because she is within the statute's protective scope
3. create only a permissible inference of fault that the jury may accept or reject
4. have no effect, because a criminal statute cannot inform a civil standard of care

Answer: B — establish breach, because she is within the statute's protective scope

B) Correct — where the plaintiff is in the protected class and the harm is of the type the statute targets, an unexcused violation conclusively establishes duty and breach in most jurisdictions. A) Overstated; causation and damages remain to be proved. C) A minority of jurisdictions treat violation as evidence only, but the majority position stated in B controls absent a contrary flag. D) Statutes routinely supply the standard of care.

Strict liability in tort applies to which situation?

1. Driving at excessive speed on a public roadway
2. A slip-and-fall inside a busy grocery store
3. Blasting operations in a residential area
4. Ordinary breach of a commercial contract

Answer: C — Blasting operations in a residential area

A) Speeding is negligence, not strict liability. B) Slip-and-fall requires proof of negligence in maintenance. C) Correct — blasting is a classic abnormally dangerous activity triggering strict liability under Restatement §§ 519-520. D) Contract breach is not a tort at all.

A consumer was hurt when a power saw's blade guard retracted because of a design flaw. She sues the manufacturer in strict products liability. Which of the following must she prove?

1. That the manufacturer failed to use reasonable care in designing the saw's guard
2. That the product was defective on leaving the defendant and reached her unchanged
3. That she was in privity of contract with the manufacturer that made the saw
4. That the manufacturer had actual notice of prior injuries from the same defect

Answer: B — That the product was defective on leaving the defendant and reached her unchanged

B) Correct — strict liability requires a defect existing when the product left the seller's hands and no substantial alteration afterward, plus causation and damages. A) Fault is the negligence theory, not strict liability. C) Privity was abandoned for products claims long ago. D) Notice of prior injuries matters to punitive damages or negligence proof, not to the prima facie strict liability case.

Products liability theories?

Strict liability, negligence, breach of warranty.

Defamation: public figure standard?

Actual malice (NY Times v. Sullivan): knowledge of falsity or reckless disregard.

When does a defendant owe a duty of care to an unforeseeable plaintiff?

Under the majority Cardozo view, duty runs only to plaintiffs in the foreseeable zone of danger. The minority Andrews view extends duty to anyone in fact harmed.

Name the four elements of negligence.

Duty, breach, actual and proximate causation, and damages.