Things I Got Wrong on Torts MBE Practice Qs

No. In a negligence action, the plaintiff must prove that the defendant owed a standard of care and that the defendant's conduct fell short of the requisite standard. The standard of care can be measured by an objective standard. Expert testimony is not necessary. Whether the standard of care has been breached is determined by the trier of fact.

No. A private citizen is privileged to make an arrest in the case of a felony if a felony has in fact been committed and the arresting party has reasonable ground to suspect that the person being arrested committed it. Therefore, the attendant's restriction of the traveler's movement, based on his reasonable belief that she was the robber, was a privileged imprisonment.

No. Vicarious liability occurs when one is held liable for the tortious conduct of another, typically within the scope of employment, even if its own conduct was blameless. As the defendant was not within the control of the airline, either as employee or agent, the airline cannot be liable for his conduct.

No. A directed verdict is a decision by a judge that the awards judgment to the defendant without the defendant having to put on her own case. A directed verdict is typically awarded when the plaintiff has failed to offer a prima facie case and cannot establish all of the requisite elements of the claim, even if the defendant presented no opposition. Here, if a jury found that the grandmother owed the plaintiff a duty to keep her weapons in a safe fashion, which she breached by failing to lock the gun cabinet and caused him injury, a directed verdict should not issue. Answer choice A is incorrect because even though the grandmother is not legally responsible for the acts of her grandson, she is responsible for her own negligent act of leaving the cabinet unlocked. Answer choice B is incorrect as it is irrelevant whether the grandmother remembered if the cabinet was unlocked. It was her negligence in failing to secure the cabinet that gives rise to the liability. Answer choice C is incorrect as the plaintiff cannot prevail solely on the basis that a firearm is an inherently dangerous instrument. Being in possession of an inherently dangerous instrument may give rise to a duty to others, but is not a basis for automatic liability. The plaintiff would still have to establish that any duty owed him was breached and caused him harm.

She used reasonable care in the maintenance of her brakes. One may be liable in a cause of action for negligence when their act or failure to act, without intent, falls below the degree of ordinary care imposed by law. An automobile driver has a duty to make sure that the automobile is kept in good repair. If the commuter used reasonable care in the maintenance of her brakes, she would not have breached her duty of care. Hence, she could not be found negligent. Answer choice A is incorrect because if the commuter had breached her duty of care, she could still be found liable even if she was not the cause in fact of the harm. Answer choice C is incorrect because all automobile drivers have the duty to watch for pedestrians and it is foreseeable that one would be crossing the street. Answer choice D is incorrect because it is not the appropriate standard. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

At least one of the defendants had control over whatever agency or instrumentality caused the patient’s injury. Ybarra v. Spangard and cases that follow its approach have relied on this extension of res ipsa loquitur to establish causation in situations in which the plaintiff was treated by a medical team that, as a group, had exclusive control of the patient and in which the patient, because she was unconscious, cannot identify what went wrong. The doctrine may be limited to medical cases in which there may be a concern that none of the medical professionals would be willing to testify against another.