ANSWERS TO PROBLEMS
1. A statute requiring railroads to fence their tracks is construed as intended solely to
prevent animals that stray onto the right of way from being hit by trains. B & A Railroad
Co. fails to fence its tracks. Two of Calvin’s cows wander onto the track. Nellie is hit by
a train. Elsie is poisoned by weeds growing beside the track. For which cows, if any, is B
& A Railroad liable to Calvin? Why?
Answer: Violation of Statute. The railroad company is liable for Nellie, the cow that was hit
by the train, and probably not for Elsie. For a statute to be adopted as the standard of
2. Martha invites John to lunch. Martha knows her private road is dangerous to travel,
having been heavily eroded by recent rains. She doesn’t warn John of the condition,
reasonably believing that he will notice the deep ruts and exercise sufficient care. While
John is driving, his attention is diverted from the road by the screaming of his child, who
has been stung by a bee. He fails to notice the condition of the road, hits a rut, and skids
into a tree. If John is not contributorily negligent, is Martha liable to John?
Answer: Duty to Invitees. No. A possessor of land who knows of dangerous conditions on
3. Nathan is run over by a car and left lying in the street. Sam, seeing Nathan’s helpless
state, places him in his car for the purpose of taking him to the hospital. Sam drives
negligently into a ditch, causing additional injury to Nathan. Is Sam liable to Nathan?
Answer: Duty of Care. Yes, for the additional injuries. A person who begins a rescue by
4. Led Foot drives his car carelessly into another car. The second car contains dynamite,
which Led had no way of knowing. The collision causes an explosion which shatters a
window of a building half a block away on another street. The flying glass inflicts
serious cuts on Sally, who is working at a desk near the window. The explosion also
harms Vic, who is walking on the sidewalk near the point of the collision. Toward whom
is Led Foot negligent?
Answer: Scope of Liability (Proximate Cause) Comment j to Section 29 of the Third
Restatement explains that both the risk standard (for negligent conduct) and the
foreseeability test (for scope of liability) “exclude liability for harms that were
5. A statute requires all vessels traveling on the Great Lakes to provide lifeboats. One of
Winston Steamship Company’s boats is sent out of port without a lifeboat. Perry, a
sailor, falls overboard in a storm so heavy that had there been a lifeboat, it could not
have been launched. Perry drowns. Is Winston liable to Perry’s estate?
6. Lionel is negligently driving an automobile at excessive speed. Reginald’s negligently
driven car crosses the center line of the highway and scrapes the side of Lionel’s car,
damaging its fenders. As a result, Lionel loses control of his car, which goes into the
ditch, wrecking the car and causing personal injuries to Lionel. What can Lionel
recover?
Answer: Defenses to Negligence. The question here is whether Lionel’s negligent conduct
was a contributing factor to the accident. The Third Restatement, Section 463, defines
contributory negligence as “conduct on the part of the plaintiff which falls below the
standard to which he should conform for his own protection, and which is a legally
7. Ellen, the owner of a baseball park, is under a duty to the entering public to provide a
reasonably sufficient number of screened seats to protect those who desire such
protection against the risk of being hit by batted balls. Ellen fails to do so.
(a)Frank, a customer entering the park, is unable to find a screened seat and, although
fully aware of the risk, sits in an unscreened seat. Frank is struck and injured by a batted
ball. Is Ellen liable?
(b) Gretchen, Frank’s wife, has just arrived from Germany and is viewing baseball for
the first time. Without asking any questions, she follows Frank to a seat. After the batted
ball hits Frank, it caroms into Gretchen, injuring her. Is Ellen liable to Gretchen?
Answer: Assumption of Risk. (a) Under the Second Restatement of Torts: No, Frank has
voluntarily assumed the risk and, therefore, is not entitled to recover for harm arising out
of the assumed risk. Restatement, Second, Torts, Section 496C, Illustration 4.
8. Negligent in failing to give warning of the approach of its train to a crossing, CC
Railroad thereby endangers Larry, a blind man who is about to cross. Mildred, a
bystander, in a reasonable effort to save Larry, rushes onto the track to push Larry out
of danger. Although Mildred acts as carefully as possible, she is struck and injured by
the train.
a. Can Mildred recover from Larry?
b. Can Mildred recover from CC Railroad?
Answer: Duty of Care. (a) No. Larry is not liable to Mildred because Larry did not breach a
duty owed to Mildred. (b) Yes. Mildred does not assume the risk. A plaintiff’s
acceptance of risk is not regarded as voluntary where the defendant’s tortious conduct
9. Vance was served liquor while he was an intoxicated patron of the Clear Air Force
Station Non-Commissioned Officers’ Club. He later injured himself as a result of his
intoxication. An Alaska state statute makes it a crime to give or to sell liquor to
intoxicated persons. Vance has brought an action seeking damages for the injuries he
suffered. Could Vance successfully argue that the United States was negligent per se by
its employee’s violation of the statute?
Answer: Reasonable Person Standard/Violation of Statute. Yes. An unexcused violation
of a statute or regulation is negligence in itself, or negligence per se if the court adopts
the statute as defining the conduct of a reasonable person.
10. Timothy keeps a pet chimpanzee, which is thoroughly tamed and accustomed to playing
with its owner’s children. The chimpanzee escapes, despite every precaution to keep it
upon its owner’s premises. It approaches a group of children. Wanda, the mother of one
of the children, erroneously thinking the chimpanzee is about to attack the children,
rushes to her child’s assistance. In her hurry and excitement, she stumbles and falls,
breaking her leg. Can Wanda recover for her personal injuries?
Answer: Strict Liability: Keeping Animals. Yes. Owners and possessors of wild animals
are subject to strict liability for physical harm caused by such animals, whether they are
11. Hawkins slipped and fell on a puddle of water just inside of the automatic door to the H.
E. Butt Grocery Company’s store. The water had been tracked into the store by
customers and blown through the door by a strong wind. The store manager was aware
of the puddle and had mopped it up several times earlier in the day. Still, no signs had
been placed to warn store patrons of the danger. Hawkins brought an action to recover
damages for injuries sustained in the fall. Was the store negligent in its conduct?
Answer: Duty to Invitees. Yes. Decision for Hawkins. The grocery store had the duty to use
ordinary care to keep its premises in a reasonably safe condition for invitees or to warn
12. Escola, a waitress, was injured when a bottle of soda exploded in her hand while she
was putting it into the restaurant’s cooler. The bottle came from a shipment that had
remained under the counter for thirty-six hours after being delivered by the bottling
company. The bottler had subjected the bottle to the method of testing for defects
commonly used in the industry, and there is no evidence that Escola or anyone else did
anything to damage the bottle between its delivery and the explosion. Escola brought an
action against the bottler for damages. Since she is unable to show any specific acts of
negligence on its part, she seeks to rely on the doctrine of res ipsa loquitur. Should she
be able to recover on this theory? Explain.
Answer: Res Ipsa Loquitur. Decision for Escola. Res ipsa loquitur permits the jury to infer
both negligent conduct and causation from the mere occurrence of certain types of
events. This rule applies “when the accident causing the plaintiff’s physical harm is a
13. Hunn injured herself when she slipped and fell on a loose plank while walking down
some steps . The night before, while entering the hotel, she had noticed that the steps
were dangerous, and although she knew from her earlier stays at the hotel that another
exit was available, she chose that morning to leave via the dangerous steps. The hotel
was aware of the hazard, as one of the other guests who had fallen that night had
reported his accident to the desk clerk then on duty. Still, the hotel did not place
cautionary signs on the steps to warn of the danger, and they were not roped off or
otherwise excluded from use. Hunn brought an action against the hotel for injuries she
sustained as a result of her fall. Should she recover damages? Explain.
Answer: Defenses to Negligence/Contributory Negligence & Assumption of Risk. No,
Hunn will not recover damages under the Second Restatement. There were other routes
14. Fredericks, a hotel owner, had a dog named “Sport” that he had trained as a watchdog.
When Vincent Zarek, a guest at the hotel, leaned over to pet the dog, it bit him. Although
Sport had never bitten anyone before, Fredericks was aware of the dog’s violent
tendencies and, therefore, did not allow it to roam around the hotel alone. Vincent
brought an action for injuries sustained when the dog bit him. Is Fredericks liable for
the actions of his dog? Explain.
Answer: Strict Liability/Keeping of Animals. Yes, Fredricks is liable to Zarek. The
defendant knew and feared the consequences and vicious propensities of “Sport” and
15. Two thugs in an alley in Manhattan held up an unidentified man. When the thieves
departed with his possessions, the man quickly gave chase. He had almost caught one
when the thief managed to force his way into an empty taxicab stopped at a traffic light.
The Peerless Transport Company owned the cab. The thief pointed his gun at the
driver’s head and ordered him to drive on. The driver started to follow the directions
while closely pursued by a posse of good citizens, but then suddenly jammed on the
brakes and jumped out of the car to safety. The thief also jumped out, but the car
traveled on, injuring Mrs. Cordas and her two children. The Cordases then brought an
action for damages, claiming that the cab driver was negligent in jumping to safety and
leaving the moving vehicle uncontrolled. Was the cab driver negligent? Explain.
Answer: Reasonable Person Standard/Emergencies. No. Judgment for Peerless Transport
Company. The court stated that the test of actionable negligence is what a reasonably
16. A foul ball struck Marie Uzdavines on the head while she was watching the Metropolitan
Baseball Club (“The Mets”) play the Philadelphia Phillies at “The Mets” home stadium
in New York. The ball came through a hole in a screen designed to protect spectators
sitting behind home plate. The screen contained several holes that had been repaired
with baling wire lighter in weight than the wire used in the original screen. Although the
manager of the stadium makes no formal inspections of the screen, his employees do try
to repair the holes as they find them. Weather conditions, rust deterioration, and
baseballs hitting the screen are the chief causes of these holes. The owner of the
stadium, the city of New York, leases the stadium to “The Mets” and replaces the entire
screen every two years. Uzdavines sued “The Mets” for negligence under the doctrine of
res ipsa loquitur. Is this an appropriate case for res ipsa loquitur? Explain.
Answer: Res Ipsa Loquitur. Yes. Judgment for Uzdavines. Res ipsa loquitur permits the
jury to infer both negligent conduct and causation from the mere occurrence of certain
types of events. This rule applies “when the accident causing the plaintiff’s physical
harm is a type of accident that ordinarily happens as a result of the negligence of a class
17. Two-year-old David Allen was bitten by Joseph Whitehead’s dog while he was playing
on the porch at the Allen residence. Allen suffered facial cuts, a severed muscle in his left
eye, a hole in his left ear, and scarring over his forehead. Through his father, David sued
Whitehead, claiming that, as owner, Whitehead is responsible for his dog’s actions.
Whitehead admitted that (a) the dog was large, mean-looking, and frequently barked at
neighbors; (b) the dog was allowed to roam wild; and (c) the dog frequently chased and
barked at cars. He stated, however, that (a) the dog was friendly and often played with
his and neighbors’ children; (b) he had not received previous complaints about the dog;
(c) the dog was neither aggressive nor threatening; and (d) the dog had never bitten
anyone before this incident. Is Whitehead liable?
Answer: Strict Liability. No. Decision for Whitehead. Owners and possessors of domestic
animals are subject to strict liability if they knew, or had reason to know, of an animal’s
18. Larry VanEgdom, in an intoxicated state, bought alcoholic beverages from the Hudson
Municipal Liquor Store in Hudson, South Dakota. An hour later, VanEgdom, while
driving a car, struck and killed Guy William Ludwig, who was stopped on his motorcycle
at a stop sign. Lela Walz, as special administrator of Ludwig’s estate, brought an action
against the city of Hudson, which operated the liquor store, for the wrongful death of
Ludwig. Walz alleged that the store employee was negligent in selling intoxicating
beverages to VanEgdom when he knew or could have observed that VanEgdom was
drunk. Decision?
Answer: Violation of Statute. Judgment for Walz. South Dakota forbids the sale of
intoxicating beverages to one in a drunken state. Courts may adopt the requirements of
19. The MacGilvray Shiras was a ship owned by the Kinsman Transit Company. During the
winter months, when Lake Erie was frozen, the ship and others moored at docks on the
Buffalo River. As oftentimes happened, one night an ice jam disintegrated upstream,
sending large chunks of ice downstream. Chunks of ice began to pile up against the
Shiras, which at that time was without power and manned only by a shipman. The ship
broke loose when a negligently constructed “deadman” to which one mooring cable was
attached pulled out of the ground. The “deadman” was operated by Continental Grain
Company. The ship began moving down the S-shaped river stern first and struck another
ship, the Tewksbury. The Tewksbury also broke loose from its mooring, and the two
ships floated down the river together. Although the crew manning the Michigan Avenue
Bridge downstream had been notified of the runaway ships, they failed to raise the
bridge in time to avoid a collision because of a mix-up in the shift changeover. As a
result, both ships crashed into the bridge and were wedged against the bank of the river.
The two vessels substantially dammed the flow of the river, causing ice and water to
back up and flood installations as far as three miles upstream. The injured parties
brought this action for damages against Kinsman, Continental, and the city of Buffalo.
Who, if any, is liable?
Answer: Proximate Cause. Judgment for the injured parties. A ship insecurely moored in a
fast-flowing river is a known danger to the owners of all ships and structures down the
20. Carolyn Falgout accompanied William Wardlaw as a social guest to Wardlaw’s brother’s
camp. After both parties had consumed intoxicating beverages, Falgout walked onto a
pier that was then only partially completed. Wardlaw had requested that she not go on
the pier. Falgout said, “Don’t tell me what to do,” and proceeded to walk on the pier.
Wardlaw then asked her not to walk past the completed portion of the pier. She ignored
his warnings and walked to the pier’s end. When returning to the shore, Falgout got her
shoe caught between the boards. She fell, hanging by her foot, with her head and arms
in the water. Wardlaw rescued Falgout, who had seriously injured her knee and leg. She
sued Wardlaw for negligence. Decision?
Answer: Duty to Licensee. Judgment for Wardlaw. A possessor of land owes a duty to warn
a licensee of dangerous activities and conditions (1) of which the possessor has
21. Joseph Yania, coal strip-mine operator, and Boyd Ross visited a coal strip-mining
operation owned by John Bigan to discuss a business matter with Bigan. On Bigan’s
property there were several cuts and trenches he had dug to remove the coal beneath.
While there, Bigan asked the two men to help him pump water from one of these cuts in
the earth. This particular cut contained water eight to ten feet deep, with side walls or
embankments sixteen to eighteen feet high. The two men agreed, and the process began
with Ross and Bigan entering the cut and standing at the point where the pump was
located. Yania stood at the top of one of the side walls. Apparently, Bigan taunted Yania
into jumping into the water from the top of the side wall. As a result, Yania drowned. His
widow brought a negligence action against Bigan. She claims that Bigan was negligent
“1) by urging, enticing, taunting and inveigling Yania to jump into the water; 2) by
failing to warn Yania of a dangerous condition on the land . . .; [and] 3) by failing to go
to Yania’s rescue after he jumped into the water.” Was Bigan negligent?
Answer: Duty to Invitees. No. Judgment for Bigan. Taunting and enticement will only
constitute actionable negligence if directed “at a child of tender years or a person
mentally deficient.” Therefore, Bigan’s taunting of Yania, who was an adult in full
ANSWERS TO “TAKING SIDES” PROBLEMS
Rebecca S. Dukat arrived at Mockingbird Lanes, a bowling alley in Omaha, Nebraska, at
approximately 6:00 P.M. to bowl in her league game. The bowling alley’s parking lot and
adjacent sidewalk were covered with snow and ice. Dukat proceeded to walk into the
bowling alley on the only sidewalk provided in and out of the building. She testified that she
noticed the sidewalk was icy. After bowling three games and drinking three beers, Dukat left
the bowling alley at approximately 9:00 P.M. She retraced her steps on the same sidewalk,
which was still covered with ice and in a condition that, according to Frank Jameson,
general manager of Mockingbird Lanes, was “unacceptable” if the bowling alley were open
to customers. As Dukat proceeded along the sidewalk to her car, she slipped, attempted to
catch herself by reaching toward a car, and fell. She suffered a fracture of both bones in her
left ankle as well as a ruptured ligament. Dukat sued Mockingbird Lanes, seeking damages
for her for personal injuries. Mockingbird denied liability for Dukat’s personal injuries.
(a) What arguments would support Dukat’s claim for her personal injuries?
(b) What arguments would support Mockingbird’s denial of liability for Dukat’s
personal injuries?
(c) Which side should prevail? Explain.
ANSWER:
(a) Dukat could argue that she was an invitee. Therefore, with respect to the condition
of the premises, Mockingbird is under a duty to exercise reasonable care to protect
her against dangerous conditions she is unlikely to discover. This liability extends
