Torts MBE 5

Traveler was a passenger on a commercial aircraft owned and operated by Airline. The aircraft crashed into a mountain, killing everyone on board. The flying weather was good.
Traveler’s legal representative brought a wrongful death action against Airline. At trial, the legal representative offered no expert or other testimony as to the cause of the crash.
On Airline’s motion to dismiss at the conclusion of the legal representative’s case, the court should

Driver was driving his car near Owner’s house when Owner’s child darted into the street in front of Driver’s car. As Driver swerved and braked his car to avoid hitting the child, the car skidded up into Owner’s driveway and stopped just short of Owner, who was standing in the driveway and had witnessed the entire incident. Owner suffered serious emotional distress from witnessing the danger to his child and to himself. Neither Owner nor his property was physically harmed.
If Owner asserts a claim for damages against Driver, will Owner prevail?

The Rapido is a sports car manufactured by the Rapido Motor Co. The Rapido has an excellent reputation for mechanical reliability with one exception, that the motor may stall if the engine has not had an extended warm-up. Driver had just begun to drive her Rapido in city traffic without a warm-up when the engine suddenly stalled. A car driven by Troody rear-ended Driver’s car. Driver suffered no external physical injuries as a result of the collision. However, the shock of the crash caused her to suffer a severe heart attack.
Driver brought an action against the Rapido Motor Co. based on strict liability in tort. During the trial, the plaintiff presented evidence of an alternative engine design of equal cost that would eliminate the stalling problem without impairing the functions of the engine in any way. The defendant moves for a directed verdict at the close of the evidence.
This motion should be

Passenger departed on an ocean liner knowing that it would be a rough voyage due to predicted storms. The ocean liner was not equipped with the type of lifeboats required by the applicable statute.
Passenger was swept overboard and drowned in a storm so heavy that even a lifeboat that conformed to the statute could not have been launched.
In an action against the operator of the ocean liner brought by Passenger’s representative, will Passenger’s representative prevail?

The day after Seller completed the sale of his house and moved out, one of the slates flew off the roof during a windstorm. The slate struck Pedestrian, who was on the public sidewalk. Pedestrian was seriously injured.
The roof is old and has lost several slates in ordinary windstorms on other occasions.
If Pedestrian sues Seller to recover damages for his injuries, will Pedestrian prevail?

Pat had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by Surgeon. Two days thereafter, Pat suffered a stroke, resulting in a coma, caused by a blood clot that lodged in her brain. When it appeared that she had entered a permanent vegetative state, with no hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. Surgeon was not involved in that decision, or in its execution.
The administrator of Pat’s estate thereafter filed a wrongful death action against Surgeon, claiming that Surgeon was negligent in having failed to consult a cardiologist prior to the operation. At the trial the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that Surgeon performed.
In this action, the plaintiff should

Vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, Vintner was forced to make a crash landing on his own property. Without Vintner’s knowledge or consent, Trespasser had entered the vineyard to camp for a couple of days. Trespasser was injured when he was hit by the basket of the descending balloon.
If Trespasser sues Vintner to recover damages for his injuries, will Trespasser prevail?

The warden of State Prison prohibits the photographing of the face of any prisoner without the prisoner’s consent. Photographer, a news photographer, wanted to photograph Mobster, a notorious organized crime figure incarcerated at State Prison. To circumvent the warden’s prohibition, Photographer flew over the prison exercise yard and photographed Mobster. Prisoner, who was imprisoned for a technical violation of a regulatory statute, happened to be standing next to Mobster when the photograph was taken.
When the picture appeared in the press, Prisoner suffered severe emotional distress because he believed that his business associates and friends would think he was consorting with gangsters. Prisoner suffered no physical harm as the result of his emotional distress. Prisoner brought an action against Photographer for intentional or reckless infliction of emotional distress.
What is the best argument that Photographer can make in support of a motion for summary judgment?

When Parents were told that their child, Son, should repeat second grade, they sought to have him evaluated by a psychologist. The psychologist, who charged $300, determined that Son had a learning disability. Based upon the report, the school board placed Son in special classes. At an open meeting of the school board, Parents asked that the $300 they had paid to the psychologist be reimbursed by the school district. A reporter attending the meeting wrote a newspaper article about this request, mentioning Son by name.
In a privacy action brought by Son’s legal representative against the newspaper, the plaintiff will

Patron ate a spicy dinner at Restaurant on Sunday night. He enjoyed the food and noticed nothing unusual about the dinner.
Later that evening, Patron had an upset stomach. He slept well through the night, went to work the next day, and ate three meals. His stomach discomfort persisted, and by Tuesday morning he was too ill to go to work.
Eventually, Patron consulted his doctor, who found that Patron was infected with a bacterium that can be contracted from contaminated food. Food can be contaminated when those who prepare it do not adequately wash their hands.
Patron sued Restaurant for damages. He introduced testimony from a health department official that various health code violations had been found at Restaurant both before and after Patron’s dinner, but that none of Restaurant’s employees had signs of bacterial infection when they were tested one month after the incident.
Restaurant’s best argument in response to Patron’s suit would be that