See all Bar Exam topics
AddThis - Bookmarking and Sharing Button

PrevPrev NextNext
Sub:confusing torts MBE question
Law Student Avatar Author: xoyo00 [21813]
02/18/2012 9:31 PM
Quote Reply
Rate:
  •  
  •  
  •  
  •  
  •  


A landowner's piece of property was located on the corner of a busy intersection. People walking past the intersection often cut across the landowner's property rather than walk along the side walk, despite a "keep off" sign that the landowner erected. The landowner had captured a young bobcat several months earlier and decided to keep him as a pet. In an effort to stop people from cutting across his yard, the landonwer erected a large sign that read, "Beware of Bobcat." Knowning that a bobcat attacks using its claws, he tok it to a vet to have its claws removed. The vet failed to remove one of the bobcat's claws, but the landowner was not aware of this. The landlower kept the bobcat on a leash in the front yard. The leash was long enough to allow the bobcat access to most of the landowner's property. The next day, a woman walking home from the market. When she came to the intersection, she cut across the landowner's property rather than staying on the sidewalk. The bobcat charged at the woman and slashed her legs severly with its one remaining claw.

If the woman brings suit against the landowner for her injuries caused by the bobcat and establishes that she did not see the warning sign, the woman will:
a) recover, bc the bobcat was not a domesticated animal.
b) recover, bc the woman was not away of the sign on the landowner's property.
c. not recover, bc the woman was a trespasser.
d. not recover, bc the bet was the cause of the injury.

i got the answer wrong for this and still cannot understand why it is the correct answer. I will post the correct answer that BARBRI suggest but I Want to see what everyone thinks first.

Thanks in advance.

18076
Tags: torts mbe
Law Student Avatar Author: melissabrooks [70]
02/18/2012 9:41 PM
Quote Reply

I'm going with A.

18076
Law Student Avatar Author: stulaw11 [92]
02/18/2012 9:45 PM
Quote Reply

Hmmm I would say A because generally the owner is strictly liable for wild animals like a bobcat.

The only defense I am aware of to strict liability (for MBE purposes at least) is assumption of risk. Unless the woman/trespasser saw the sign or knew of the risk, she could not possibly have knowingly assumed it in order to give the owner a complete defense to strict liability.

The de-clawing issue is moot too because the risk cannot be eliminated by due care such as de-clawing or de-fanging a wild animal.

18076
Law Student Avatar Author: Lito [21813]
02/18/2012 9:46 PM
Quote Reply

A. Based on strict liability. Bobcat is a wild animal.

18076
Law Student Avatar Author: Danmed [21813]
02/18/2012 9:51 PM
Quote Reply

Definitely A. The Explanation will have some BS explanation about how the Vet's negligence was foreseeable.

18076
Law Student Avatar Author: Con [21813]
02/18/2012 9:51 PM
Quote Reply

D. But for the vets failure to remove the claw, the slashing would not have occurred.

18076
Law Student Avatar Author: xoyo00 [21813]
02/18/2012 9:56 PM
Quote Reply

Thanks for the quick responses, I, too, thought the answer was A, however barbri says the answer is C.

Here is there reasoning which I'm still not sure I am uncomfortable with this little caveat in the rule which may or may not be true (I haven't seen it in any of my outlines).

The woman will not recover bc she is a trespasser on the landowner's land. The general rule is one who posses an animal not customarily domesticated in that area is strictly liable for all harm done by the animal as a result of its harful or dangerous characteristics. For trespassers, however, strict liability is not imposed against landowners. Trespassers cannot recover for injuries inflicted by the landowner's wild animal in the absence of neligence, such as where the landowner knows that tresspassers are on the land and fails to warn them of the animal. Under this standard, even though the landowner could anticipate that trespassers like the woman would cross his property, he will not be liable bc he exercised reasonable care by posting a sign warning about the bobcat and by attempting to make the animal less dangerous.

So I'm thinking this logic is along the lines of having discovered trespassers and having a duty to warn of known dangers? I dont know, so long as that is satisfied they aren't negligent? But I honestly didn't think negligence didn't have anything to do with strict liability with dangerous animals (hence the strict liable aspect).

18076
Law Student Avatar Author: Lito [21813]
02/18/2012 10:54 PM
Quote Reply

That is confusing alright!

18076
Law Student Avatar Author: xoyo00 [21813]
02/19/2012 12:32 AM
Quote Reply

okay so it doesn't necessary say which theory she wants to file suit for, however she will be most successful trying to file a strict liability suit bc of the animal, and regardless of his efforts to warn, it will be irrelevant bc of the characteristic of the animal. so i dont understand why A is not correct.

I see why C would be correct under a negligence theory and how he met his duty of care by providing warning, but i dont think negligence should even apply since it's a wild animal.

i feel like while C may be correct, A is a better answer bc she will be more successful with that.

18076
Law Student Avatar Author: lordjay [36]
02/19/2012 4:53 AM
Quote Reply

I'm only going to go for C and I'll definitely say A is a trap answer for absolutely sure. Obviously B, D will be eliminated right away. I don't see why A would be the right answer - the owner went to the vet and removed the claws. So what if the vet was negligent in missing out removing one claw; that wouldn't make a difference at all. Bobcat, I believe there's always an arguable (and very controversial) counter argument that in the process of being domesticated, he will have one free bite. On the other hand, the landowner did everything he could to the known trespassers for warning of the dangers of crossing his land. Whether the land owner owed absolute duty or just a duty of warning, because woman was a trespasser (known or unknown wouldn't matter), she will not be able to recover. I go with C.

18076
Law Student Avatar Author: Sean [21813]
02/19/2012 5:56 AM
Quote Reply

The answer is C, because the woman trespassed (there would have been no obligation at all on the part of the landowner if he hadn't any ideas that people tresspassed on his land, but here, he did. He needed to warn of unknown dangerous conditions that have the potential to cause death or serious bodily injury. But he is not strictly liable. I've seen some questions which claim the landowner can be liable on intentional tort grounds if the landowner had, for example, a vicious dog that he was substantially certain would attack anyone who enters the land, and the dog attacks a tresspassor.

But if you take anything from this question, remember that a landowner is not strictly liable for the harm caused by his abnormally dangerous animals, if the harm is caused to a person who has tresspassed on his land.

Sean
http://www.mbetutorial.blogspot.com

18076
Law Student Avatar Author: right answer [21813]
02/19/2012 9:13 AM
Quote Reply

So what was the right answer? I say A b/c he knew about trespassers and he had a wild animal that caused the harm.

18076
Law Student Avatar Author: Sean [21813]
02/19/2012 11:11 AM
Quote Reply

The key is that he warned. Only liable to unknown trespassers for hidden dangers, and this danger was not hidden.

So, "C."

18076
Law Student Avatar Author: Sean [21813]
02/19/2012 11:13 AM
Quote Reply

Sorry, to *known* trespassers.

18076
Law Student Avatar Author: failcopter [21813]
02/19/2012 12:54 PM
Quote Reply

Okay look, the victim is a known trespasser. A warning is insufficient to negate liability for injuries resulting from wild animals. This is strict liability, not merely premises liability.

HOWEVER, I think there might be an argument that the doctor's negligence is a superseding cause.

18076
Law Student Avatar Author: Sean [21813]
02/19/2012 1:18 PM
Quote Reply

Failcopter:

That analysis is incorrect, because strict liability is generally not available for trespassers, known or unknown. If a trespasser is to recover for damages caused by a wild animal, then the trespasser will need to at least prove negligence on the part of the owner of the animal (the landowner).

And in proving negligence, the status of the trespasser becomes important because a landowner is not liable in negligence to an unknown trespasser, but can be liable in negligence to a known trespasser. The duty owed to a known trespasser (which we have here) is to warn of or make safe concealed unsafe artificial conditions known to the landowner involving risk of death or serious bodily injury.

There are a few reasons as to why the landowner here satisfied the required standard of care, but most of all, because he posted a warning sign, which means that the dangerous condition (ie, the animal) was not concealed. Because the landowner is not liable on a theory of strict liability, and the landowner has satisfied his duty of care in regards to an action in negligence, the landowner is not liable to the trespasser.

18076
Law Student Avatar Author: failcopter [21813]
02/19/2012 3:21 PM
Quote Reply

Makes sense.

18076
Law Student Avatar Author: alnjd0722 [21813]
02/19/2012 6:46 PM
Quote Reply

I agree that it's answer choice C.

I think that answer choice A would have been correct had the woman been a licensee and not a trespasser under strict liability rules, but C is definitely the correct answer because it hits an exception to the general rule under strict liability for wild animals. Answer choices B and D can easily be eliminated because they do not address strict liability. Ultimately, I eliminated answer choice A because, while it implied (i.e., using "domesticated animal" to suggest bobcat as a wild animal), answer choice C gave direct statements of both rule and fact specific to strict liability. Additionally, choice C answers to the trespass exception to te strict liability rule for wild animals. I've learned from Kaplan that, whenever faced with two possible correct answers where one presents an exception to negate the other possible correct answer, one should select the answer giving the exception. Hope this helps. :)

18076
Law Student Avatar Author: alnjd0722 [21813]
02/19/2012 6:56 PM
Quote Reply


Posted By on 19 Feb 2012 06:46 PM
I agree that it's answer choice C.

I think that answer choice A would have been correct had the woman been a licensee and not a trespasser under strict liability rules, but C is definitely the correct answer because it hits an exception to the general rule under strict liability for wild animals. Answer choices B and D can easily be eliminated because they do not address strict liability. Ultimately, I eliminated answer choice A because, while it implied (i.e., using "domesticated animal" to suggest bobcat as a wild animal), answer choice C gave direct statements of both rule and fact specific to strict liability. Additionally, choice C answers to the trespass exception to te strict liability rule for wild animals. I've learned from Kaplan that, whenever faced with two possible correct answers where one presents an exception to negate the other possible correct answer, one should select the answer giving the exception. Hope this helps. :)



My apologies.....just re-posting my comment above with corrections to typos. :).

I agree that it's answer choice C.

I think that answer choice A would have been correct had the woman been a licensee and not a trespasser under strict liability rules, but C is definitely the correct answer because it hits an exception to the general rule under strict liability for wild animals. Answer choices B and D can easily be eliminated because they do not address strict liability. Ultimately, I eliminated answer choice A because, while it implied the bobcat to be a wild animal (i.e., saying "...not a domesticated animal"), answer choice C gave direct statements of both rule and fact specific to strict liability (i.e., no recovery for trespassers; woman is a trespasser). Additionally, choice C answers to the trespass exception to the strict liability rule for wild animals. I've learned from Kaplan that, whenever faced with two possible correct answers where one presents an exception to negate the other possible correct answer, one should select the answer giving the exception. Hope this helps. :)

18076
Law Student Avatar Author: Known trespasser [21813]
02/19/2012 10:17 PM
Quote Reply

The landowner is liable. He knew that people cut across his yard as a shortcut, he put up a sign (which has no effect), and then put a wild animal out to scare people. She was a known trespasser and she was injured as a result of a claw that was natural to the animal. Answer A.

18076
Law Student Avatar Author: failcopter [21813]
02/20/2012 12:58 PM
Quote Reply

When I initially answered the question, I was purely going off the lecture. I don't think the NY torts guy mentioned the following.

Based on the CMR, strict liability for wild animals kept on land is limited to licensees and invitees, unless you have a guard dog.

Although the trespasser is known, strict liability does not apply based on the foregoing.

You might argue that this is a trap; however, nothing in the facts suggests that that the bobcat was being used as a trap to harm trespassers.

18076
Law Student Avatar Author: NY PASSER [21813]
02/21/2012 7:31 AM
Quote Reply

I BELEIVE THE ANSWER IS A. DONT KNOW WHAT BARBRI WAS THINKING. THE FACT THAT HE HAD THE BOB CATS CALWS REMOVED DOES NOT MAKE HIS LESS LIABLE FOR HAVING A WILD/DANGEROUS ANIMAL. PMBR LECTURE NOTES 'EVEN IF IT IS SAID THAT A SNAKE WAS DEFANGED.. MAKES NO DIFFERENCE THE OWNER IS STILL HELD LIABLE IF INJURY OCCURS"

18076
Law Student Avatar Author: new info [21813]
02/21/2012 4:09 PM
Quote Reply

I originally said A but seen alot of people choosing C so I put the question to Prof. Bracci (he answers question about the fylse and CBX for our school) and this is his response.

Dear David,

I understand why there is a disagreement.

It is clear that, with abnormally dangerous activities, strict liability does not extend to trespassers. However, it is not as clear with wild animals. It is a close split, but it seems that the majority will not allow a trespasser to recover for strict liability for injuries caused by a wild animal. So, the answer should be C.

18076
Law Student Avatar Author: Len [21813]
04/12/2012 1:44 AM
Quote Reply

It is easier to argue in favor of the answer once its posted.  Here we are dealing with a "known trespasser" hence duty is owed.  SL is liability without fault.  So whether D exercised due care should be irrelevant, since D will be liable without fault.  The premise (argument) that D tried to make cat less dangerous is ridiculous, if this is the case, whats the purpose of SL.  Lets just move on.  


18076
Add Reply
See all Bar Exam topics
BOOKS FOR SALE


Title: CA Bar Essay Review Service
Price: $5.00
State: California


Title: Constitutional Law in a nuteshell,
Price: $15.00
State: California


Title: California Bar Exam material
Price: $10.00
State: Caifornia
Click here for more..


Contact: JDJinx @ GMail.com 

TXT      : (312) 554-5379

Membership Membership:
Latest New User Latest: samodeb
Past 24 Hours Past 24 Hours: 7
Prev. 24 Hours Prev. 24 Hours: 5
User Count Overall: 8838

Copyright by All4JDs.com aka AllForJDs.com aka JDJinx.com aka BarExam.Co