03 September 2013

Bar Prep: Torts #2

This is one in a series of posts designed to give you some insight into the questions that one might see on the bar exam, and how one might go about answering them. For similar posts, click here.

QUESTION: Lara is walking to her office one morning, when a public school bus rapidly careens up onto the sidewalk where she is walking and heads straight for her. Yurii, the bus driver, is so preoccupied with tuning his new satellite radio to his favorite disc jockey that he does not realize that the bus has gone off the road. Lara tries her best to get out of the way in time and at the last minute jumps into the yard of Tonya, her neighbor. Once she lands on the ground, Lara realizes that she is lying in a patch of Tonya's prize-winning carnations, and has essentially killed the entire carnation patch. Tonya sues Lara for damages to her carnations. How will the court find?

A. Lara is liable as she had no privilege to enter Tonya's yard.

B. Lara's liability rests in the determination of whether Lara acted with due care.

C. Lara is liable for the damaged carnations.

D. Lara was privileged to enter, no liability attaches to her.
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ANSWER: C. The privilege of necessity states that a person can interfere with the property of another to reasonably avoid threatened injury from a natural act or the act of another if the threatened act is substantially more serious than the invasion of the party. When dealing with private necessity (i.e., an act that only benefits one person) the actor remains liable for any damage they cause, even though they may be privileged to enter.

A is partly right, as it does correctly state that Lara is liable for the damage. It incorrectly states, however, that she was not privileged to enter Tonya's yard.

B is incorrect. Exercise of due care is meaningless since the claim against Lara will be one of intentional tort, such as a trespass or conversion. Intentional torts do not question the due care of the actor (due care is a negligence question) but simply ask whether or not the person committed the act.

D is wrong. The fact that Lara has privilege does not mean that she is not liable, as set forth in the correct answer.
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