16 (female driver approached an intersection and went through just as the yellow light ppeared. She accelerated to make sure she made it through in time. She collided into a ar driven by a male motorist coming from the intersecting street who was getting a amp on his red light that was in the process of turning green. The two cars collided, and he male motorist was seriously injured. He sued the other motorist for negligence. A ary assessed the man’s damages award at $100,000. It found that female driver was 40 vercent at fault whereas the male driver was 60 percent at fault. What, if anything, can e collect from this verdict in a pure comparative negligence state? He cannot ¢: he is mi He can colle comparative pure comparative negligence. plaintiff's recovery is limited to the percentage attributed to the defendant, ‘en if the plaintiff was more than 50 percent at fault. Thus, plaintiff collects that percentage of the damages tributed to the defendant, which in this case is 40 percent of $100,000, for a recover of $40,000 from the vfendant. NEXT QUESTION16 man died in a hospital of a fatal, highly contagious disease. A hospital clerk neglected. the set protocol of marking the body with warnings that there was a communicable disease involved. The funeral director embalmed the body without taking extra precautions, which caused him to have a great deal of contact with the corpse's blood and. fluids. When he found out about the disease, he sued the hospital for damages, including severe emotional distress. Which of the following is the most likely tort theory that the olaintiff can successfully assert against the hospital? The hospital committed a battery of his person by remaining silent and intentionally causing him to suffer an offensive contact from a corpse with a highly contagious disease The hospital committed an assault against him by intentionally causing him to suffer ai offensive touching from a c with 2 highly contagious disease The hospital committed the tort of intentional infliction of emotional distress by recklessly releasing the corps ecting funeral home. oan ur sus The hospital was negligent and breached its duty to notify those who could suffer eae ea ee Rca \ith respect to battery, there is a lack of proof of actual intent by the hospital. The same defense would apply > the tort of assault Intentional infliction of emotional distress also fails on the intent issue, and the actions ‘ere not outrageous enough to establish the kind of egregious behavior necessary for that tort Intent with spect to these torts is defined in the Restatement in effect that the actor intends to cause the consequences ‘This act or that he believes that the consequences are substantially certain to result Its much more likely vat negligence. being the lack of due care under the circumstances. is the tort action that has the best chance ‘being successful, The danger to a funeral home personnel, who are often required to embalm bodies, was preseeable. The hospital had a duty to prevent that kind of injury to @ company that it ald business with pauiatly NEXT QUESTION (© )son was severely injured and not knowing at that moment whether he would survive or aot. The son did survive the accident and recover. She later sued the other driver who aad caused the accident by his negligent driving. She asserted the tort of negligent nifliction of emotional distress in her complaint. The defendant filed a motion to dismiss, asserting that he had no duty to compensate the victim’s mother and that the mother did aot observe the accident. Under the view expressed by the majority of state court iecisions, will the court likely grant the motion and dismiss the case? No, it's up to the jury to decide if the circumstances were such as to cause sufficient emotional trauma to the plaintiff Sec SU ROC Un Rec UL Ne Ua eee RMT 1c} ECU UMN UD nESRe ner A Cee CoM OM ele nM eRe Tel CeLic is [iSO PRU CRAs No, the observing of the son severely injured near where the accident occurred was sufficient; she did not have to actually witness the accident or arrive there before the scene was cleared Yes, because there can never be a recovery for emotional distress without a physical impact against the plaintiff herself I most states, the action is allowed but there are restrictions. The plaintiff must be ciosely retated to the victim, nd she must be present at the time of the accident and witness the trauma to the son. She must then suffer vere emotional distress, which is the Kind of distress that a normal person would be unable to adequately pe with. A minority view says that she can arrive immediately after the accident, before any changes occur, 1nd before the victim's location is changed: but in our example above the victim was moved and mother arrived fer the scene had been cleared away. See Thing v. La Chusa. 48 Cal 3d 644. 657-68, 71 P. 24.814 (CA upreme Ct. 1989); Portes v. Jaffee, 84 N.J 88, 101, 417 A. 2d 521(NJ: Supreme Ct. 1980), Clohessy v. achelor, 237 Conn. 31, 62-63 (CT Supreme Ct. 1996) (__ NEXT QUESTION ©EAS |G Scarce wie + very evening a bill collector would call the plaintiff every 30 minutes throughout the ght. The caller would make threats about collecting the money owed but would also ention personal facts about the plaintiff's private life, such as the names of his two ‘ior spouses, the names of his children, his prior jobs, a prior lawsuit against him, and any other personal matters. Then packets of mail would arrive with photos indicating at the bill collector was following plaintiff and taking photos of him in his yard, outside ith his dog, at family picnics and doing odd jobs around his house, and even inside his vuse, leading plaintiff to suspect and believe that a micro-video device was planted in s home. The plaintiff felt that nothing was sacrosanct and that the harasser seemed to tow everything he did and everything from his past. He finally obtained information on e identity and address of the company engaging in the activities, and sued it for vasion of privacy and violations of federal and state fair debt collections practices acts. ith respect to the invasion of privacy tort, will the court grant the motion to dismiss ed by the defendant company? Yes, because invasion of privacy does not apply where the activity of the plaintiff is observable by the public Ne ee Sn Soe ae hic as ek eC SenC Sy Sem een cs eS Rac oh Pere on eae Yes, the plaintiff does not have a right to complaint because these are normal and reasonable collection activities and the information Is alll public information. No, the defendant company was illegally holding the plaintiff in a false light, in a way that was highly offensive 3 tort prohibits spying, probing, peenng and such stealthy activities into one’s private life and activities. The \vites are Judged by an objectve standard of what would be offensive to a reasonable person under the umstances. These activities are so intrusive and continuous as to constitute a true interference with the intiff’s right to privacy and the peaceful enjoyment of his life. NEXT QUESTION ©16 A neighborhood residents group sued a non-profit Community Services organization, which sponsored a free meal program for indigent persons from throughout the city. The lawsuit asked the court to issue an injunction against the program because it was a auisance. The program was so successful that the large numbers of indigent persons coming into the neighborhood had visibly changed its residential character. The patrons did not come for their meals and leave in an orderly manner. Instead, they remained in the neighborhood, often urinating on neighbors lawns, throwing litter on the private properties, and drinking alcoholic beverages. Some of the patrons of the program began panhandling on the sidewalks and approaching neighbors as they entered and exited their homes. The police were called regularly, and certain unoccupied buildings had been entered by the patrons. Will the court likely issue an injunction closing the free meal program? No, the right to run a charitable program in a residential area is a part of the constitutional right to liberty and freedom of assembly No, the charitable activities of an organization must be given priority to operate when it is an instrumental tool in feeding the poor. Yes, the court has the right to keep an area free from unwanted criminal elements and homeless people without considering the purposes or utility of the program SCOR ee Uw re CM BUR UCC] PCa CRG a UCN Aun RGR OR ACM SSIs eu Canta Ok aM ISCN Ts Natoma v their land outweighs the other f he organization can have certain activities enjoined due to the acts of patrons who inflict damage to urrounding residential properties and interfere witn peopée’s right to use and enjoy their land. An injunction to rrotect and preserve these rights is an appropriate measure, after a balancing test of ihe faciors is made. The ere fact that the police might be able to provide relief is not sufficient to eliminate the need for an injunction. jee Armory Park Neignbornood Assn v. Episcopal Community Services, 712 P.2d 914 (Ariz 1985). Here, te ilerference was clearly subsiantial and unreasonable.‘or the permanent loss of earnings of the plaintiff for the remainder of his work life. How does the plaintiff best prove what amount he is entitled to receive for future lost wages, -€., permanent and total loss of earning capacity? He must have his employer verify how much he was making and then present a disability expert to multiply that by the number of years until retirement and add a growth rate for future inflation Saar RU es UR ue Recon sd eee Tecan RS Cen UR ene CMe og TURE ue eee eet eee ee ra There are official tables published by the government that provide the amount of lost earnings that a person suffers, for purposes of a tort recovery, for a specified period of years By presenting a tax specialist and certified financial planner to compute the average annual wage less all annual taxes and average expenses of living, and multiplying that net figure by the estimated remaining years of work life, reduced to present value. actuarial expert gets on the stand and explains in a step-by-step process how to compute the figure of lost arnings for the remainder of the man's life. The appropriate expert for this is an economist or actuary. The gure must be reduced to present value so the defendant gets that discount and the plaintiff must invest it to et the extra interest that nas been deducted by the discount rate. ( \) (__ NEXT QUESTION (2) ) protect the residents. The association took it under advisement but ultimately voted to ake no action. She installed her own lighting system and the association demanded that he take it down or suffer costs and penalties, because only the association could control ae common areas and how they looked and were lighted. She complied, and shortly aereafter she was robbed and brutally raped one evening as she entered the dark, eserted contours of her front hallway after unlocking her front door. She sued the omeowners’ association for negligence. The association countered that it had no duty to ae owner, and that it was not similar to a for-profit landlord who did owe a duty for the ecurity of common areas. The trial court dismissed the complaint as failing to state a laim and she appealed. Will the appellate court recognize that the association had a uty to use due care to protect the homeowners? Ce ose Oe Rete Ck TCs ke Be ec es tke ca) Va rul a Cuma oR onsibility for security, lighting, maintenance _ and improvements in all common < Yes, the association is strictly liable for damages caused by its failure to provide minimum safety measures for the protection of all homeowners. No, the association has no duty to protect the homeowners from danger or to provide any kind of security in the common a No, the association is not similar to a landlord in function or responsibilities owed for the common areas of the complex. xe function of the homeowners association is analogous to that of a landlord and the association owed a duty plaintiff to protect her from the foreseeable criminal acts of others. The plaintiff alleged facts sufficient to16 Iwo union representatives got in an argument at work. The male rep told the female rep that he was running for president of the local union in the next election. The female rep told him that she had been planning to run. He told her, while pointing a finger in her face, “I could whip you in an election any time, or I could beat you silly right here and now.” The female rep walked away, feeling very apprehensive about the male rep’s threat. The next day, they discussed union politics again, and the male rep once again stated that he could beat her “by votes or by a horse whipping, whichever you prefer.” She became very upset, and a few days later brought a civil action against him for assault. Has the man likely committed an actionable assault? No, these were mere political arguments and the kind of heated things that might be said in a political context No, any apprehension would be of something too far in the future to constitute a true assault. Meee Te ae Oa ue AY nos PURI Rae CRUE Neo RUE Ct Tey Yes, the statomonts of the male rep violated the Fair Labor Standards Act, which allows for civil actions for damages between union members. «assault for civil action damages consists basically of an action or movement with the intent to cause @ armful or offensive contact. or to cause apprehension of such contact, where the victm is put in reasonable Pprenension of an imminent narmtul or orensive contact. Here. all the elements are clearly met and tne 2male rep would have an assault claim in civil court. That doesn’t mean that the claim would be worth much, or ‘orth tne trouble of suing, but ifthe threats became repetitive, the long-term emotional trauma to a defendant ‘ould become significant (_ Next QUESTION ©16 \ man purchased a new car with 8 miles on the odometer. In the first week after the vurchase, the gas pedal got stuck when depressed, and the car accelerated uicontiollably, eventually crashing into the front ofa strip mall jewelry store and killing he cashier. The cashier's family filed an estate, and sued not only the driver for \egligence, but also the automobile manufacturer in strict liability. The manufacturer ried to defend on the basis of having no privity with the cashier. The jury returned a ‘erdict of $3.5 million against the auto manufacturer. The manufacturer appealed, tating that strict liability for a defective product could not be extended to bystanders. sased on the more generally accepted principles of modem tort law, what will the ppellate court decide regarding the right of the decedent's estate to collect from the aanufacturer? Lack of privity of contract prevents the estate from going against a defendant with whom it had no contractual or business relationship. Only a consumer or user of the product is able to bring an action for injuries or death against a manufacturer or seller of a defective product that is unreasonably dangerous. Sires SURO Use se cod NRT eR Ue Ona Ce Cee eae J The victim's estate must prove that the manufacturer breached an implied warranty CAR Oe et eee UCC eG Rac anything, bystanders should be entitled to greater protection than the consumer of user where injury to sianders trom ine defect Is reasonaby foreseeable. Consumers and users. at least, nave tne opportunity to spect for defects and to buy only from reputable manufacturers and reputable retallers, whereas the ‘stander ordinarily has no such opportunities. In short, the bystander is in greater need of protection from sfective products which are dangerous.EO 16 \n industrial truck sales and service center had a wide variety of rigs, trucks and tractor nits multi-acre gated main parking lot. There was a set of keys in each vehicle. The nntrance gate was intentionally left open during the day for convenient ingress and gress. A gang member from a nearby gang headquarters walked into the parking lot luring work hours, and drove off with a very large state-of-the-art industrial tow truck. Ie had difficulty managing the gear shifts and other knobs while accelerating, and was o distracted that within a few minutes he ran over and killed an elderly woman in a ross walk. The woman’s estate sued the truck center for negligence. The defendant ervice center filed a motion to dismiss, in which it asserted that it had no duty to third versons to protect them from truck thieves. It argued that even if it had a duty, the nterceding act of the thief was a superseding cause of the accident. Will the court allow he plaintiff's wrongful death negligence action against the truck center to go forward? No, because the service center could nol foresee thal a gang member who didn’t know how to drive an industrial tow truck would take it and kill someone. No, because the leaving of keys in a vehicle is never considered a foreseeable cause of injury or death from a vehicle thief who does not drive properly. Nee so eeeCR e eR Cero e Smear COLUM Cece: Eire cress ot i eee arene eure Mate OMAR Corse Soc: eRe Re seecae Yes, because the service center is strictly liable for any damages to third parties resulting from unauthorized use of one of its trucks. 2re, the powerful nature of the vehicle and the difficulty in operating it without training created ‘special rcumstances”, which is an exception to the general rule that simply leaving the keys in the vehicle is not rough for foreseeability. See Palma v. U.S. Industrial Fasteners, Inc., 36 Cal. 3d 171, 183-86, 203 Cal. Rptr. 26, 681 P.2d 893 (1984). In Palma, defendant parked a large flatbes truck overnight in an unfenced lot in a ah-crime area with keys inside, door unlocked, and window open. This was held to be a triable issue of6 married couple had an agreement to purchase land from a developer. The couple at the ame time signed a contract with a builder to build a home on the land, construction to cart immediately after closing on the land purchase. When the developer learned of the ontract with the builder, he told the couple that he would not sell them the land. The eveloper told the couple that he would sell the land only if they contracted with him to uild the home, and based on his experience and knowledge of the codes, inspections, ermits and other requirements, the job would be done far quicker than the builder. He rew up a contract for the same specifications, but the price was 10% less than the one ‘ith the builder. Can the builder successfully sue the developer for his losses? Yes, he can sue for intentional interference with prospactive business advantage STROM RC Cte LUCE eee et entionally interfered with an existing contract No, there is no contract with the builder until he actually begins work roject. No, the developer w committing a tortious act ing in competitive free enterprise and was not the building project nerely on in bidding o1 € intentional tort of interference with contract must allege (1) a valid contract, (2) defendant's knowledge of 2 contract, (3) defendant's intentional interference with the contract and a resulting breach, and (4) mages. All of these elements can be fairly found in the stated facts. VIEW RESULTS ©You have passed :)| ‘or Your Multistate Bar Exam 2016 . vehicle operator was driving on a highway at night. His girlfriend was in the passenger eat. They were returning from a college night class. She was smoking marijuana, lowing it out the open window, and not sharing it with the driver. The driver fell asleep ausing the car to veer off the highway and go into a ditch where it landed upside-down. oth the driver and passenger were seriously injured. She sued the operator for egligence. The operator filed a counterclaim asking for damages against the passenger y arguing that the passenger was herself negligent by "smoking weed" and causing him. > all asleep. Is the court likely to grant the passenger's motion to dismiss the ounterclaim? a assenger wes not actively participating in a joint enterprise and did not do enough to contribute to the cause of the accident. Vv Yes, because a vehicle operator is always liable and a passenger cannot be made liable for the driver's actions under any circumstances. No, because the driver has properly alleged a joint enterprise situation where the passenger is liable for her share of the negligence in causing the accident passenger may be found liable for injuries to others in an accident f the passenger's conduct substantially Icouraged or assisted the driver's negligence. Here, there is no possibility of that based on the aiven facts. te driver clearly had a duty to stay awake and drive carefully. Breaching that duty by falling asleep dictates | award of damages to the passenger. See. for example. Price v. Halstead, 355 SE 2d 380, 389 (WV Supreme Of App 1987). See also, Restatement (Second) of Torts, § 876(@) and (b) (1977). which may apply in some ates, but in all tests the issue is whether the passenger encouraged the negligent behavior. (_ NEXT QUESTION ©SS for Your Multistate Bar Exam 2016 At a metro station in the city, there is always significant construction going on, including a rebuild of the elevator shaft between the platform and the ground level. There is a sign warning “this elevator is not available at this time, please do not ride it.” A passenger sees the signs, but tries to ride the elevator anyway, and is injured when she falls into the shaft. When the passenger sues the city for negligence, the city states that she assumed the risk. Is that a valid and accurate defense under the circumstances? EMER NAC RICE RiCa aon na Ro Peer cece Cun eeu) Yes, because the signs make her contributorily negligent and a legal cause of her own injury. Nee US a Re Ue meu Rea ACM om eon EY MU RUC RU Ae RCCL Ue CTE) 4 No, because the city has strict liability when everyone is depending on the subway. fhe main issue in most assumption of the risk disputes is whether the plaintiff knew the nature of the danger ind decided to risk taking it, knowing full well that she was encountering a specifically known dangerous or safe condition. In this case. the plaintiff knew only that the elevator was “unavailable”. which was not ‘xplanalory of the danger and risk involved at all. See, for example, Rutter v. Northeastern Beaver Cly., 496 ‘a, 990, 602, 427 A. 2d 1198 (1981), See also See Restatement of Torts 2d § 496 et seq, (_ NEXT QUESTION ©——————————— or Your Multistate Bar Exam 2016 n owner of a pizza and Italian foods restaurant opens a new location on a street where aother owner has a burger restaurant. It seems like business is slow for the pizza place wner and he eyes up his competitor, the burger man, as the reason. The pizza owner arts to make false statements about the burger restaurant and its inferior ingredients, hich he says have been causing tomain poisoning in some of the customers. When arger joint owner loses customers and business income to pizza place owner, can he sue ‘t conversion? Yes, because the pizza owner interfered with his right of peaceful enjoyment and x Cree ee tree) Yes, conversion is an intentional tort and the pizza owner acted intentionally to convert and did convert part of the burger business No, because conversion consists of appropriating another's real property. No, because there was no interference with his ownership or right of possession to his personal property. 4 version is the substantial and intentional interference with another person's right of ownership over his ‘sonal property, such as goods or personal chattels. The unauthorized exercising of total control and ‘inion over it fo the exclusion of the owner fs the fort of conversion. See Moore v Regents of University of Moria, 51 Cal.3d 120, 136-37 793 P. 2d 479 (Cal. Supreme Cl. 1990). The burger restaurateur may be ‘e to sue for defamation, interference with business relationships, or a related tort, but not conversion tause there was no interference with his ownership rights to personal property. The taking of "business" is aking or converting personal property, such as goods or chattels. (_ NEXT QUESTION ©TT ) for Your Multistate Bar Exam 2016 \ young woman joined a social media service that provided networking with other ousiness persons and entities nationwide. The woman discovered that the service was selling her personal profile information, and the information pertaining to thousands of other members, to third party purchasers for tracking of their Internet activities and suying habits. In her class action breach of contract action against the service, she alleged two theories of damages. First, she contended that she and the class members suffered "embarrassment and humiliation” from the disclosure, and second, that she and he others must be compensated for the market value of the information seized. Will the court likely recognize these allegations as sufficient to state a claim for breach of contract? PUR ae hu Keo res hu e O Yes, because these are common types of damages that are authorized in breach of contract cases No, bee: se Internet laws protect absolutely all communications and downloz nature as part of the service's guaranteed scope of free speech rights. Nae Se Cee We ces tae EU RUC Urner scales ECR eigen lee Una loss ‘motional and physical distress damages are generally not recoverable on a breach of contract claim. Low v. Inkecin Corp.. 900 F Supp. 20 1010, 1028-29 (Dist. Court, ND California 2012). In adaition, the unautnorizea allecton of personal information by a third-party is not seen as an “economic loss" under breach of contract ase law In re DoubleClick, Inc., Privacy Litig., 184 F Supp.2d 497, 525 (S.D.N.Y.2001) (the unauthorized allection of personal information by third-party is not "economic loss"); see also in re JetBlue Airways Corp., Fvacy Litg., 379 F Supp.2d 299, $27 (E.D.N.Y.2005) (airline's disclosure of passenger data to third party in ‘lation of airine’s privacy policy had no compensable value)ee for Your Multistate Bar Exam 2016 \ pet breeder is in the business of breeding calves at his cattle ranch where he has a table of prolific cows who are very fertile. The newborn calves need constant attention nnd care. One day one of the employees inadvertently leaves the fence door open and a tewly-born calf breaks free and goes to his neighbor's land. The breeder went to the teighbor's land to retrieve the calf for its safety and to make sure it was unharmed. owever, he was arrested on a trespass charge after entering the land. The breeder ppealed. Will the court dismiss the charge? Yes, because he had a limited privilege to enter the land to prevent harm to his WY x No, because the neighbor had a right to keep any living chattols that crossed onto his land No, b cause his status as a breeder made him unqualified for a limited license 1 exception exists under Restatement § 345 for one who enters another's land under a public or private ivlege. Under Restatement § 198. one is privileged to enter to retrieve chattel to which one has the right of Imediate possession, and which went on the land without consent. Under Restatement § 197 a person “Is ‘ivleged to enter or remain on land in the possession of another if its or reasonably appears to be acessary to prevent serious harm to . .. the actor, or his land or chattels. .. ." In both instances the intruder Duld be classified as a licensee. See, Restatement § 345; Walsh v. Sun Oll Co., 437 Pa. 80, 262 A.2d 128 970); Carpenter v. Penn Central Transp. Co., 409 A. 2d 37 (Pa. Super. 1979). (_ NEXT QUESTION ©fe said that all he had was $100,000 in liability coverage. The court allowed the injured aan's attorney to cross-examine the driver about insurance coverage, and he elicited an dmnission that the driver knew that his company may have to pay the full award of the ary. The jury entered a verdict for $200,000 in compensatory damages and $500,000 1 punitive damages. Defendant appealed, claiming that it was improper to question on ae amount of insurance coverage or to speculate on whether the full amount may have > be paid. Will the appellate court likely affirm the award of punitive damages? No, the punitive damages award cannot be excessively high and cannot ex Neen CR Ra One es No, because it is never proper to bring insurance information into the case against the defendan ra defendant opened the door to that kind of eross-examination by ee eee One MO re ei) Yes, because the jury always has a right to be informed of the insurance coverage pertaining to each party in a tort case for personal injury damages. ‘Tt aw provides compensatory (actual) and punitive damages. Punitive damages are awarded wnere the ndant's actions were wanton, reckless and in callous disregard of the plaintiffs rights. The defendant pene¢-the-door" to the Issue of labllily coverage when she tried to prove that she was unable to pay any initve damage verdict when, in fact, she had liability insurance. Further, when defendant left the impression at only $100,000.00 in coverage was avaliable, she “opened-the-door” to the Issue oT the avalabilty oF \verage for an excess verdict based on bad faith of the insurance company. See Kenney v. Liston, 760 SE 2d \4, 448-49 (\VV Supreme Ct of App. 2014). NEXT QUESTIONDl or Your Multistate Bar Exam 2016 ome homeless people started residing on a strip of land located under a bridge. The ind was owned by a nearby chemical manufacturer. The squatters did not ask ermission, and the company did not feel it was an urgent problem. The squatters used a nall lake on the property for bathing and drinking water. Within a few days, two quatters died from what was later revealed to be highly polluted water coming from the ompany's waste discharges. The company knew that it had a waste discharge problem. he estates of the two decedents sued the company. Will they likely prevail on their tort ‘aim despite the company’s defense that the decedents were trespassers? Porn ee RU Nore ec me Rs COR Teed WZ N Caer Yes, because the owner was strictly liable for any injuries caused by the hazardous condition of the water in the lake No, because owner owes no duty to trespassers except if it acts with willful or wanton disregard No, because an owner of land never has to worry about protecting the safety of trespassers. common law, negligence requires a duty vinich nas been violated. As @ general rule, no duty is owed to a ‘spasser, except to refrain from acting with wanton and willful disregard. Where the owner knows about the ‘spassers and knows about the dangerous condition, the owner must at least take sufficient action to warn ‘spassers and others of the danger. See Lee v. Chicago Transit Authority, 605 NE 2d 493, 498-99 (IL preme Court 1992); Brett v. Great American Recreation. Inc.. 144 N.J. 479. 677 A. 2d 705 (NJ Supreme vurt 1996),——————_£ ‘or Your Multistate Bar Exam 2016 . homeowner buys a new leaf blower and is so impressed with its power that he gets arried away and blows large amounts of his work onto the next door neighbor's yard. In Adition to leaves, he also blew large amounts of pest-infested plant debris onto the eighbor's property. The material has accumulated into large, unsightly piles and caused amage to the neighbor's healthy plants. He has to pay workers to haul the material away nd he incurs expenses to replace infected perennials. The neighbor sues for the tort of tespass. The homeowner files a motion to dismiss because the neighbor cannot prove hat homeowner acted with an intent to trespass or to do harm. Will the court grant the aotion to dismiss? No, because the infected debris constituted an abnormally dangerous condition and homeowner could be held strictly liable for the trespass. Ne ceo d on an intentional act of entering the land or sending something onto the land, and the actor does not have to intend harm to be Tele Som aCe Yes, because the homeowner had no practical way of controlling where the 4 material went and he acted without malice or ill will Yes, because the homeowner expected the wind to carry the debris away and did not think that it would accumulate on the neighbor's property. though trespass is an intentional tort, the tort does not require proof of intent fo trespass or intent to harm, 00f of intent to perform the act that leads to the trespass is all that is needed. With trespass, causing mething to go onto the land is sufficient without a personal intrusion by the defendant. Thus, intending to ow the leaves is all that is needed here. See Harris County v. Cypress Forest Pub. Utility Dist., 50 SW 3d 551, i4 (TX Ct of App. 2001). A trespass is an intentional tort because it involves an intent to commit an act which lates a property right. or would de practcally certann to have that effect. altnougn the actor may not know al the act he intends to commit is such a violation. Id. See also, Cleveland Fark Club v. Perry, 165 A 2d 485, 16-89 (Dist of Col. Mun. Ct. of App. 1950).for Your Multistate Bar Exam 2016 \ man who was emotionally upset due to marital problems voluntarily checked into a orivate medical facility for treatment. State law provided that if he tried to leave against nedical advice, the hospital could hold him for 72 hours while trying to convince him to stay. During the stay, he told his medical providers that he was intensely angry at his vife, who was living with another man, and he wanted to harm her. Despite that aowledgo, the hospital issued him an unrestricted weekend pass. When he got out he shot and killed his wife. The man’s children sued the hospital for negligence. The rospital filed a motion to dismiss mainly because there was no privity with the decedent ind no duty owed to her. Will the court grant the motion to dismiss? No, because the hospital is strictly liable for releasing patients who it knows or should know represent an unreasonable danger to third persons. No, b the special relationship and the control between doctor and an en ee oR Me NM Me se ON ee Nesta R a) others. Soe eR er ee OR RR eeu Conon. eee OOM Te Rey Yes, because the intervening acts of third partios are unforeseeable and cannot give rise to liability. Mere the treatment of a mental patient involves an exercise of “control” by a physician wno knows or should OW that the patient Is Ikely to cause bodily harm to others. an independent duty arises 1rom that relationship :quiring the doctor to exercise reasonable care to prevent the ham. See, for example, Bradley Center v. lessner, 206 SE 2d 693, 250 Ga. 199, 200 (Ga. Supreme Court 1982). Also, see Restatement (Second) of pris § 319, Duty Of Those in Charge Of Person Having Dangerous Propensilles: One who takes charge of lird person whom he knows or should know fo be likely to cause bodily harm to others if not controlled is der a duty to exercise reasonable care to control ine third person to prevent him trom doing such harm.ES for Your Multistate Bar Exam 2016 4 tenant's four-year old daughter fell from a second-floor outdoor stairway at their partment building. The tenant sued the landlord for negligent construction and naintenance of the stairway, steps, and railing, The stairs were built on a dangerously steep incline, the steps were loose, and the railing was insufficient to keep the baby from falling over the side. The jury found that the landlord was negligent in the design and sonstruction of the stairs and in failing to maintain the stairs, steps and railing in a safe condition. The landlord appealed on the basis of immunity from suit and the failure of the tenant to assert any exception to landlord immunity. Under the modern rule, will the xppellate court affirm the jury's verdict against the landlord? Pom Cec Mui R om Ue a Me oie CR ay PoMireNm eh ok modem rule is that the landlord, like SOE Re tacn Sect ete Renee es le risk of Tea) No, because the landlord still enjoys the common law protection of the doctrine of “lessee beware,” and residential property is generally still rented “as is.” No, because a landlord cannot be held liable for negligent design or maintenance, even under the modem rule { common law property was rented as is, and the rallying call was "buyer beware." Generally, landlords can ow be able for regular negligence principles in exposing tenants to unsafe conditions. This Is closely related » the implied warranty of habitabily that is now generally imposed on landlords. See Sargent v. Ross, 113 NH 88, 308 A2d 628 (NH. Supreme CI. 1973), which is a lanamark case that started the trend of rulings trom ‘ate courts that imposed general tort liability on landlords. (_ Next question © )SSS for Your Multistate Bar Exam 2016 \ inexperienced bicycle rider took her new bike for a test run. At an intersection, she could not stop for a red light and went into the intersection, where she slipped off the ike. While attempting to remount it, a car coming into the intersection with a green ight ran her over, causing severe injuries. The car driver was distracted by his cell phone ind received a careless driving ticket from the police. The woman filed a claim for lamages, asserting that the car driver was negligent per se. She claimed that a finding of 1egligence per se prevented the driver from asserting comparative negligence under a tate statute. Will the trial court likely grant the woman's motion to preclude the man's tempted comparative negligence defense? Yes, because the driver had the last clear chance to avoid the accident, which abrogates the comparative negligence lew. Yes, because negligence per se is a final judgment of total negligence against the driver and it cannot be modified or rebutted Meco eR een ke ou em ee ued ee Ree oe ane RS COU a Oe en UCU ee aU Re eel LUC No, because she entered the intersection knowing it herself voluntarily and knowingly in danger, and she a red light, thereby putting sumed the risk der the comparative negligence statute the relative degrees of the plaintif's and defendant's fault must be scertained lo determine whether and what amount of recovery is proper. Lyons v. Nasby. 770 P. 2d 1250. 259 (Colo. Supreme Court 1989). The common-law doctrine of negligence per se should not be applies to srogate the legislatively imposed requirement that a jury apportion the degree of negligence attributable to ¢ plaintiff and defendant. McCall v. Meyers, 94 P. 8d 1271, 1273 (Colo. Ct of App, 1st Div. 2004). See ‘aphagan v. Mid-America Traffic Marking, 656 NW 2d 778, 783 (Neb. Supreme Court 1996), NEXT QUESTION © )for Your Multistate Bar Exam 2016 4 man with a long history of criminal violence who is a psychopathic personality, often anjoys the act of mercilessly brutalizing innocent elderly people by physical torture that s heinous and shocking. He decides to torture the victim’s father for no good reason. After the beating, the father is hospitalized and in intensive care. The victim was not sresent but read about it in the newspaper and heard about it from the authorities. Victim suffered extreme emotional distress and required medical treatment. Can victim oring a successful action against perpetrator for intentional infliction of emotional listress? (IIED) Nee een oe een RR ole Va oa Yes, because the activity was outrageous and shocking No, bi cause perpetrator did not know that the father had immediate family members. Yes, because in torture ses there is strict liability imposed on the perpetrator he generally recognized elements of IED are: (1) extreme and outrageous conduct with the intent to cause, or ith reckless disregard of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional istress; and () the defendant's conduct is the legal cause of the plaintiff's emotional distress. Where the utrageous actions are not directed at the plaintif, but instead at a family member or a third person, the laintit in most jurisdictions must be “present” for tortious intent to trave! from the actual subject of torture to te spectator. The Restatement (Second) of Torts § 46(2) siales Hat only present third parties may recover for IED claim. However, emerging case law may modify the doctrine somewnat. For example, a federal court as held that where there is a terrorist attack on service men, the plaintiff family member does not have to be resent. See Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (D.C., Dist. of Columbia, 2007). But in the ypothetical test question, itis not a terrorist attack and the normal rule applies. (_ NEXT QUESTION ©SS ‘our Bar Exam 2016 \ truck driver pulled off the highway onto a shoulders marked "emergency only," so that ae could sit and eat a sandwich. An automobile going in the same direction veered off the coad and struck the rear of the tractor trailer. The driver died, and his estate filed a wrongful death action against the driver of the rig and his employer. The decedent was aot drunk, but may have fallen asleep. A forensic expert testified that the car would have stopped without a collision if the truck was not there. The jury awarded $10 million, assessing fault of 10% to the rig driver and 90% to the auto driver. It is a pure comparative negligence state. The defense argued that the truck driver owed no duty to she decedent. Defense moved for a judgment notwithstanding the verdict, which the trial udge granted. On appeal, will an appellate court likely uphold the trial court's decision against the jury verdict? DR er a ae ce enn Ac ae Cae ee aes A No, because public policy as a general rule requires heavily insured vehicles to contribute, regardless of the amount of fault, when there is death or serious injury. Deo NRCOa e Ueden RaCUee ia Se ECE Ue Ria ance Yes, because emergency zones are provided specifically for trucks to do just what this truck did. he general rule Is that every motorist has a duty to use reasonable care for the safety of atner motorists. This “generally reflected in statutory and common law jurisprudence in most states. Exceptions to the rule don't ppy nere IIs foreseeanie that a diver may los2 control and leave the highway, colliding Into other abjects in te shoulder area. Wnere regs provide for only emergency stopping, itis negligence to stop and have a andwich in an emergency zone. The man would not have died if the truck was not there. Cabral v. Ralphs itocery Co., §1 Gal.4th 764, 768-69, 248 P. 3d 1170 (CA Supreme Ct 2011). Because the stop was contrary to ighway regulations, the courts will apply l@blity for the negligence if there is causation. if there had been a ue emergency for stopping, then the truck driver would not ikely have been at fautt. Id. at 785.our Bar Exam 2016 \ young woman met a young man on Facebook. After months of messaging, they met ind began to have a sexual relationship. They met at the man's residence for sex dozens of times. During her visits, she complained to him that he was inflicting pain on her mnwillingly during sex. This included alleged slapping, hitting, choking, and forcing her o have anal sex, and other sadistic practices. She continued to see him but eventually h cut off the relationship. She sued him for civil battery, asking for damages for emotiona listress, post traumatic stress disorder, internal pain and other illnesses requiring ubstantial medical expenses. She claimed he manipulated her mind. Will the trial cour ikely grant the man’ motion to dismiss the complaint based on the asserted failure to tate a legal claim? Dee RR nee a are Cea aa ae Rue re Rods POR cea Oia ee Re OT omer MURR (6 UM CTO RS TMT Cree otherwise gave him written notice that he had to cease and desist. No, because every time he committed a violent act it was another count of civi damages th accru No, because claim battery occurred each time the f consent ignore that a separa woman told him to stop allery requires offensive contact without consent. Generally, consent bars recovery. Plaintifr's repeated Aurning for sexual contact, including the "unwanted" aspects, indicates consent. See ENCSIK v. Shanley, 313 NY Slip Op 33310 (NY Supreme Ct 2013, No. 11365/2012, Motion Seq. No. 002 New York County}. One an consent fo contact that the person considers to be immoral or reprehensible, which destroys the rongfulness of the conduct. Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. at 719, 508 N.W.2d at 911 Juoting Prosser anc Keeton on the Law of Torts § 18 (5th ed.1984), If ihe victim cannot resist or cannot ‘derstand the nature of the conduct, the consent may be ineffective. Reavis v. Solminski, 551 NW 2d 528, 44 (NE Supreme Ct 1996). Here. she was capable of resisting. capable of staying away, and able to Werstand the conduct.ee our Bar Exam 2016 . women parked her car ina ‘visitors’ parking lot of a hospital and went in to visit a atient. When returning later to her car at about 10 p.m., she was attacked, sexually ssaulted and robbed by a masked man. She suffered severe and permanent injuries. Th ospital rejected her claim, and she brought suit for lack of security. Hospital claimed aat there were only a few reports of violence in the parking lot and none near this ttack. However, harassments and thefts were high in the emergency room and parking ot areas. Two street lights nearby were out for months and replaced only after the ssault. The neighborhood was a high crime area with assaults, robberies and rapes earby. The trial court dismissed the case for lack of foreseeability, and she appealed. Is ae appellate court likely to reverse and return the case for a new trial? ‘alneolmemancemaitigmrimare demas cients sy rd of prior incidents, which was scant or nonexistent for this part SURO R Re Me Ce Ne eR Rs a of an assault in the visitors parking lot. x No, because there is nothing a hospital can do to prevent parking lot incidents, and the risk of loss must be put on the visitor who made the voluntary choice to use the free parking area Yes, because the lack of lighting is a determinative factor that almost always proves conclusively that there was negligence and that there is liability. xe foreseeability of an assault was high in comparison to the minimal burden on the hospital to take security zasures lo ensure tne safely of persons using the public parking lol. Parking ots, by their very nature, create temptation and opportunity for criminal conduct. It was up to the jury to make the factual determination of tether there foreseeability Isaacs v. Huntington Memorial Hospital. 38 Cal.3d 112. 120-132, 695 P 2d 653 A Supreme Ct 1989). Foreseeability is but one factor to be weighed in determining whether a landowner res a duty toa visitor. Id. at 124-25. There are also public policy considerations here that place the burden ore fairly on the hospital. Id. at 125-26.‘our Bar Exam 2016 \ college student was exiting a department store when a store employee grabbed her rigorously and physically restrained her, placing her on a nearby chair. He then looked n the student's purse without asking and pulled out a blue colored compact disk. This vas an old disk owned by the student. The employee had not seen a theft but reacted suddenly on mere suspicion of a blue object. The student sued the store and employee ‘or false imprisonment. A jury awarded her $10,000. The store moved for a judgment iotwithstanding the verdict because the woman was allowed to leave within five or ten ninutes, and the store had a legal privilege to stop suspected thieves. The student ‘uffered emotional trauma and required medical treatment for a year afterwards. Will he trial court reverse the jury's verdict? use the recovery was totally out of proportion to any damages the student may have suffered. @ there was a willful confinement TES mC LOR ele) 4 Dee eee Cer No, because the store is strictly liable when it turns out that an employee has made a mistaken Stop of an innocent shopper he fort requires a wilful detention and confinement without the authority of law. in most cases, where a astomer Is stopped and then released. there must be at least a reasonable suspicion of a criminal act Tobable cause Is not required. However, itis usually up to the Jury to decide whether the store naa a vasonable suspicion of the occurrence of a crime. See Wal-Mart Stores, Inc. v. dem, 020 SW 2d 13, 619-20 ‘X Ct of Appeals, 4th Dist. 1996). See also, Thomas v. Schwegmann Giant Supermarket, 561 So. 2d 992 (LA tof Appeals, 4th Cir. 1990) (no reasonable cause to stop woman shopper). NEXT QUESTION ©our Bar Exam 2016 \ teenager borrowed a car from his uncle. The uncle knew that the teenager was neapable of driving a car safely. The uncle knew that the teen had five license uspensions, several negligence lawsuits against him, multiple DUIs, and that he was an aveterate alcoholic. The teenager got into an accident while driving the car and was eriously injured. He filed a negligent entrustment claim against the uncle, claiming he swed him a duty not to give control of the vehicle to him. The friend filed a motion to lismiss the complaint for failure to state a claim, asserting that there was no tort for irst-party negligent entrustment. The trial court granted the motion to dismiss. On ppeal, will the court likely affirm the lower court decision? Yes, because public policy generally forbids the collection of damages by the person to whom the entrustment is made. Yes, because the comparative negligence of the entrustee will always defeat liability against the entrustor. No, because public policy demands that the entrustor is strictly liable to all who are x Fotis Mr Me aM sau ar / a first-party negligent entrustment claim is generally allowed when the entrustor knows that he is loaning the vehicle to an incompetent operator. 2e Restatement of Torts (Second) Sec 390 (Negligent Entrustment). which clearly imposes a duty upon an. rtrustor not to supply a chattel to an entrusies whom the entrustor knows ar should know is likely to misus® chattel in a manner causing unreasonable risk of harm to the entrustee and/or others. Furthermore, 2s. ready noted, our system of comparative fault does not automatically bar 2 negligent entrustee from recovery he is less than al fault than the entrustor. See. for example, Martell v. Driscoll, 302 P. 34 375, 260-382 (Kan Apreme Ct. 2013). See also, Zalaivar v. Prickett, 174 SE 2d 688, 698-99 (GA Supreme Ct. 2015),‘our Bar Exam 2016 A non-profit charity employed a woman part-time as a book-keeper. The organization terminated her employment. Another employee called an accountant that she knew and informed him that the woman had been terminated for stealing money from the charity It later was discovered that she was terminated because of a dispute over the part-time hourly schedule. The other accountant himself repeated the story without knowing the facts. The woman brought an action alleging slander per se against the employee and th accountant. The defendants claimed that they had a right to repeat what they reasonabl believed to be the truth. They argued that in any event the woman had to prove that she was damaged by the statements. Will the court grant the defendants’ motion to dismiss epeating are bh 1 rumor about r per se and the si @ canno ments were mai ny malic: BO oe Ree RU Ut RL ROOTS Ee RC SMS UU DORR Cee ee eae race nN ee Ro eC eRes een mm eer eee ener ernie] A No, because special darr der is heard by more than two other perso! dne who slanders another is lable for damages without proving special harm if the publication imputes to the ‘ther a criminal offense. a loathsome disease. matter incompatible with his business. trade. profession. or ‘Mice, oF serious sexual misconduct. See Restatement (Second) of Torts § 570 (2013). Here tne statements re clearly false and against the woman's professional reputation. This is slander per se. There is no onditional privilege to make such statements under these facts. and there is no need fo prove malice or pecial damages. See, for example, Anderson v. Kammeier, 262 NW 2d 366, 372 (MN Supreme Ct 1977 statements contest the honesty of piaintiff in his business affairs): Liberman v. Gelstein, 80 NY 2d 420, 435 NY Ctof Appeals 1992) (accusations of serious crime are sander per se), NEXT QUESTION ©‘our Bar Exam 2016 4 ten-year-old boy threw a rock at a gir] in his class after school one day. He missed the sirl and hither girl friend standing several feet away. The victim lost several teeth as a -esult. The parents of the girl sued the boy on behalf of their daughter, asking for Jamages. The boy defended on the basis that he did not intent to hit the girl, did not aave the capacity to form that intent, and was deemed to be unable to form such intent ander the law. The boy’s attorney filed a motion to dismiss on those grounds. Is the trial udge likely to dismiss the case as a matter of law? Yes, because a 10-year-old cannot form the intent necessary to establish the tort of assault. Yes, because the boy did not intend to inflict injury on the girl because he did not aim at her, and the law does not allow the transferring of intent from the intended victim to someone else where no intent was involved Nore Regu Un Re Meu Roa Tula} TRUM Reesor Ue Steg oe CCM ne Rome cena aT OU ety ae Ruck ks a No, because under modern criminal statutes, a minor is treated just like an adult for all intents and purposes, which makes the minor guilty of assault and battery even without intent to injure 1 infant is lable for his torts under most modern state laws. Distinctions of age could in some jurisdictions to a nild under seven, but not here where the age is 10, it being a question of fact for the jury whether the intent to ct wrongfully was sufficiently present to bestow a tort claim in the victim. Transferred intent is applied when the tention to harm one individual inadvertently causes a second person (o be hurt instead, and the perpetrator - stil Neid responsible. See. for example. Singer v Marx, 144 Cal App 20 637, 641-42, 301 P 2d 440 (CA Ctot ppeal, 2nd App Dist, 2nd Div. 1958) (rock throwing boy liable); Baldinger v. Banks, 26 Misc. 2d 1086, 201 Y.$.2d 620 (Sup. Ct. Tr. Term 1960) (six-year-old boy capable of intent for a battery). (next question ©ES our Bar Exam 2016 \ popular x-rated magazine published an ad parody for an ad parody for a liquor company on its inside cover portraying a well-known evangelist political figure as a var-room drunk, a sexist and misogynist philanderer with several woman and men overs, and as a greed-ridden individual who has gotten rich at the expense of his voverty-stricken parishioners. At the bottom of the full page display in small print it says ad parody, not to be taken seriously." The index also list the display as a fictional varody. The evangelist sued the publication and was awarded $1 million after a trial. The nagazine appealed and the U.S. Supreme Court agreed to hear the case. Will the court ikely uphold the award? Yes, because no amount of free speech can justify trying to destroy the professional reputation of an individual, even if he is a publie figure. Some enna tre Cone ee Reese Ramses publishing the article, its malicious intent nonetheless justifies the award No, the free flow of ideas is more important than the state's interest in prot Pate eM ven Stat No, the right to publish any speech against a public figure is to be protected in all circumstances. ubiic figures and officials may not recover for the tort of intentional infliction of emotional distress without lowing in adaition that the publicaton contains a false statement of fact which was made with “actual malice.” .. with knowedge that the statement was talse or with reckless disregard as to whether or not It was true. nis is not merely a “blind application" of the New York Times standard, see Time, lnc. v. Hill, 385 U.S. 374, 390 1967), it refects our opinion that such a standard is necessary to give adequate "breathing space" to the zedoms protected by the First Amendment. Hustler Magazine, Inc. v. Falwell, 485 US 46, 67-58 (1988). VIEW RESULTS ©Your Bar Exam 2016 : ‘A drunken man was walking down the street on a very cold night, when he came upon a warehouse. To get out of the cold, he entered a door where there was a broken lock, and sat in the corner of a warehouse where a few homeless families had taken up residence. He was tired and cold, and he began to play with matches, lighting them for a bit of warmth, and then blowing them out. It was a place where many people "stopped by" so no one paid him very much attention. He looked around for something else to do. Meanwhile, the matches on the floor began to smolder behind him, and the side of the building caught fire on the inside. Will an arrest and prosecution for arson likely be successful against him? Yes, because he was a trespasser SCOR ee Re WU CoO ed RU x by playing with matches. No, because the door was not adequately locked At common law, arson is the malicious burning of the dwelling of another. It is expanded considerably in modern, statutes. Under the Model Penal Code, § 220.1(1), 2 person is guilty of arson if he starts a fire or an explosion with the purpose of destroying @ building or occupied structure of another. He is also guilty if he destroys or Jamages his property or another's for the purpose of collecting insurance. In the current exercise, itis easy to 569 that the man did not act with malice nor with an intention to destroy property. There could possibly be sriminal liability for other crimes, @.g., reckless endangerment, but arson does not exist under these facts, NEXT QUESTION‘our Bar Exam 2016 Ina large city there’s a problem with littering by motorists who indiscriminately throw trash and garbage from their vehicles onto public roads and park properties. The legislature passed an anti-littering statute which forbids throwing trash and other matter from any vehicle onto the public roads or other properties. It’s a summary offense zarrying a $50 fine and no term of imprisonment. On the third offense, the fine is $500 and there is a 5-day jail sentence. The statute is silent whether criminal intent is required for a conviction. John and his family are coming back from a weekend picnic when his children throw bags of refuse and the remains of their lunch out of the window of the moving vehicle. John is stopped and given a $50 ticket. Can John succeed with a defense that he didn’t know what his children were doing and that he had no criminal intent to break any laws? Tala Ase ee RS ay Nom cee ae Dn Aa Re CN oR a oe had not participated in the violation nor did he know that they did it or were going to doit Yes, because the police have no way of proving who in the car threw the garbage out the window. No, because his criminal intent is clearly established by the circumstances of the events, his kind of offense entails the exercise of police power of a city to adopt legislation for the preservation and ‘romotion of the health, safety and the general welfare of its inhabitants. Generally, the greater the possible ‘unishment the more likely itis that the statute requires some criminal intent to convict Conversely, the lighter 2e possible punishment the more likely the legislature intended to impase liability without fault. This type of ‘lense is well-suited to the sirict liability category due to the minor penalty initially, the difficulty it would take 10 ‘rove intent, anc due to the general harm to the community that can flow from the violations. See People v isen, 77 Mise. 2d 1044 (NY City Court, Criminal Court 1974).our Bar Exam 2016 teenage girl was babysitting a two-year-old baby. She took the baby in a stroller to the ublic park, as she was accustomed and authorized to do. On this day, she negligently aodded off” for just a few seconds on a park bench with the stroller next to her. She felt jostling movement and snapped awake to see a man taking the baby from the stroller. he man was large and menacing-looking. The babysitter, who is thin and petite, froze nd did not put up a struggle as the man stated, "I will kill you if you move." The abysitter did scream and call for help as the kidnapper fled with the child. Within a few ards he tripped and dropped the baby on its head. The baby died at the hospital of tassive head injuries. Will the prosecutor charge the babysitter with a crime, and if so, ‘hat will be the charge? Yes, this is felony murder in that the babysitter’s unacceptable behavior was committed during 4 the commission of the kidnapping felony. OR od eNom Re ue Rec 9 circum ee en RC ee esc TM CORN RRC Ue sae Dn Sle AU LL Se I NO Coy ca ag Yes, she would be charged with negligent homicide because it was foreseeable that if sho fell asleop for even just a few seconds, the baby would likely be kidnapped and killed. 5 highly doubtful that these circumstances could justify charging the babysitter with a crime. First, there is no ans rea or criminal intent There was a negligent act but not one of such seriousness that it would generally t persons at serious risk for their lives. There also was not much that the girl could do even if she had been ly awake in light of being physically powerless in the face of a menacing large man who was threatening to her, thus it might have occurred even if she was awake through the whole event. Furthermore, the crime ‘S arguably not foreseeable in the way that ine Geath occurred. For a good discussion of the requirements of minal negligence and mens rea under modern views, see US v. Cordona-Hincapie, 825 F Supp. 485, 0.505 (E.D. NY 1993). NEXT QUESTION