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1. On many occasions over an eight-month period, D repeatedly solicited P, a married person, to have sex. These included repeated telephone calls to P’s.

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Presentation on theme: "1. On many occasions over an eight-month period, D repeatedly solicited P, a married person, to have sex. These included repeated telephone calls to P’s."— Presentation transcript:

1 1. On many occasions over an eight-month period, D repeatedly solicited P, a married person, to have sex. These included repeated telephone calls to P’s residence, including late at night, and on one occasion, going to P’s residence, where P witnessed D’s indecent exposure. P became extremely upset, concerned about bodily safety, consulted a psychiatrist for several months and took prescribed anti-anxiety medications for that period. On these facts, could the jury award damages for IIED?

2 A. No, provided that D’s purpose was not to cause P extreme emotional distress.

3 B. Yes, because anxiety is a physical reaction, as shown by the psychiatrist’s prescribing medication.

4 C. No, a solicitation for sex, however insulting, offensive or boorish it may be insufficient as a matter of law to support a claim for IIED.

5 D. Yes, provided that the jury finds that even if a single solicitation is not extreme and outrageous conduct, repeated solicitations and indecent exposure are.

6 2. Every two weeks, I find a copy of the Putnam-Northern Westchester Express in my driveway. It purports to be a newspaper, but it really is primarily a collection of advertising. I don’t want it. It’s an aggravation, because I have to stop the car, get out, retrieve the item, and then dispose of it, and I’m am old and ornery. If I bring an action in trespass against the publisher because of its employee’s actions, am I likely to prevail?.

7 A. No, provided that the individual who actually delivers the item neither drives onto or steps on my driveway.

8 B. Yes, provided that I have told the publisher that I do not want the publication.

9 C. No, because the First Amendment protects the publisher’s right to publish and distribute its product.

10 D. Yes, because the publisher, through its delivery agent, has entered my property. No, because the First Amendment protects the publisher’s right to publish and distribute its product.

11 3. On the same set of facts, if I have twice told the publisher that I do not want the publication, does that increase the likelihood that I can recover for trespass for deliveries occurring after that?

12 A. No, because it is not a prerequisite to recovery that the owner tell the public (or any member of it) not to enter the property.

13 B. Yes, because it makes it unmistakable that the publisher knows it is unwelcome.

14 C. No, because the publisher is privileged to deliver the paper.

15 D. Yes, because it establishes the publisher’s purpose to aggravate me by dumping the unwanted product in my driveway.

16 4. On the same set of facts, is my having twice told the publisher that I do not want the publication of any relevance when the action comes to trial?

17 A. No, because the trespass is already established.

18 B. Yes, because it is proof that the publisher had the mental element required for trespass.

19 C. No, because mistake by the publisher as to whether the entry was permitted is not a defense.

20 D. Yes, because this is an intentional tort, and the warnings are relevant to the issue of punitive damages.

21 5. P stopped at D’s repair shop to help D repair an automobile fuel tank. In order to allow the car to move without the tank attached, P poured gasoline into the carburetor and, signaled D to turn the ignition key. The car backfired, causing an explosion that resulted in severe burns to P’s upper body. P sued D, and after the close of the evidence, requested the trial judge to instruct the jury that handling a dangerous substance such as gasoline required a particularly high duty of care. The trial court refused the instruction. Was the trial court’s ruling correct?

22 A. No, because the danger that gasoline poses is so severe that the law requires a higher standard of care than just the reasonable prudent person.

23 B. Yes, because P was contributorily negligent.

24 C. No, because D, as a mechanic, should have known better.

25 D. Yes, because the standard of care is always RPP. What may change is the burden of taking additional precautions in light of the circumstances.

26 6. P was driving on North Broadway when a woman pushing a stroller jaywalked into his path. Although P skidded a bit, he was able to stop his car without colliding with the woman or the stroller. D, however, ran into the rear of P’s car, causing personal injury and property damage. At trial, D admits following P too closely and says that he never saw the woman with the stroller. The trial court gave the jury the standard emergency instruction, telling the jury to evaluate the situation according to what the reasonable prudent person in D’s position would have done. The jury returned a verdict for D. P appeals. Should the appellate court affirm or reverse?

27 A. It should affirm on different grounds, because the RPP standard does not apply in emergencies.

28 B. It should reverse, because the emergency doctrine does not apply where D has created the emergency.

29 C. It should affirm because D acted reasonably in the emergency of the woman jaywalking.

30 D. It should reverse unless the record shows that P was well aware that D was following too closely before the accident.

31 7. P was pregnant. She and her husband did not want to have more children after the birth of the child with whom she was pregnant. P needed to have a C- section to deliver the child, and her OBGYN advised her that she could perform a tubal ligation (which ordinarily prevents further pregnancies) at the same time. P consented. A year later, P felt a sharp pain in her abdomen. It turned out that the ligation had not worked perfectly, which occurs about 2% of the time. P had developed a tubal pregnancy, which is quite dangerous to the mother and always fatal to the embryo. P had to undergo additional surgery to resolve the pregnancy. P now brings an action against the OBGYN for failing to inform her of the risk. Is the OBGYN liable for negligence?

32 A. Yes, if a 2% chance of developing a tubal pregnancy is a material risk.

33 B. No, unless in addition to it being a material risk, P proves that she would not have consented to the tubal ligation had she known of the risk.

34 C. Yes, provided that the reasonable prudent person would have refused the ligation in such circumstances.

35 D. No, if the OBGYN had performed many such procedures over a ten- year period with no complications.

36 8. A New York statute makes it unlawful to operate a motor vehicle in violation of any driver’s license restriction. D’s car collided with P’s car at a Queens intersection. D’s license required him to drive with corrective lenses, which D was not wearing at the time. There was testimony at trial from which the jury could have concluded that that P failed to keep a proper lookout when he stopped for the stop sign and from which the jury could have concluded that D’s failure to wear glasses was a proximate cause of the accident. P requested the trial court to charge the jury on negligence per se, but the court refused. The jury returned a verdict for D. P appeals. Was P entitled to the negligence per se instruction?

37 A. No, because the jury could reasonably have found P contributorily negligent.

38 B. Yes, because New York is a comparative negligence jurisdiction.

39 C. No, because P may have been negligent per se.

40 D. Yes, because the statute is a safety statute; P is a member of the protected class, and collisions are the kind of events against which the statute protects.

41 9. The marines were conducting bombing practice on a government practice bombing range on a frigid January day. P’s decedent, a fisherman, was fishing in waters six miles from the bombing range. A falling object penetrated the roof of the boat’s cabin and the hull below. The vessel sank within a minute, and decedent died shortly thereafter from hypothermia. P sued under the Federal Tort Claims Act. At the trial, P presented testimony from the range’s ordnance control officer that marine planes were approaching the bombing range from the direction of decedent’s vessel and that the damage to the vessel was consistent with the type of projectiles used in the practice. P also introduced evidence that there was no other apparent cause for the sinking. Was P entitled to a res ipsa loquitur jury instruction?

42 A. No, because there is no proof that decedent’s vessel was not already sinking when struck.

43 B. Yes, because the government has far better access to evidence about the practice and far more resources to employ in its defense.

44 C. No, it is P’s burden to prove her case by a preponderance of the evidence.

45 D. Yes, there is enough evidence to support findings of exclusive marine control and decedent’s non-contribution to the accident. The highly unusual nature of the incident permits a reasonable inference that a negligently dropped projectile sank decedent’s boat.

46 10. High Flyer, a high school sophomore, was a licensed pilot. He also suffered from SAD—seasonal affective disorder—and depression, which caused him to feel listlessness and despair after several consecutive gray days, such as we have had recently. One day after school, he decided to take his plane out for a spin in order to get up above the clouds and spend some time in the full-spectrum light of the sun to make himself feel better. The day was both overcast and foggy, so the FAA (Federal Aviation Administration) had advised private pilots not to fly unless absolutely necessary. When High Flyer attempted to land after his flight, he misjudged the runway because of the weather conditions. He was able to complete the landing, but his plane ran past the end of the runway and damaged the fence that separated the runway from local automobile traffic. If the airport sues High Flyer to recover the costs of repairs to the fence and wins, what is the most accurate explanation for its victory?

47 A. A reasonable pilot in High Flyer’s circumstances would not have flown that day, given the FAA’s advisory.

48 B. A pilot of similar age, training, maturity, intelligence and experience would not have flown that day.

49 C. The law of torts does not take mental conditions into account in considering a defendant’s negligence.

50 D. Flying is not a children’s activity, so High Flyer is strictly liable for any damage caused.

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