Archives of Exams

Torts I - Richards
Final Exam Fall 1999 - Key

Miller v. Kruetz, 643 S.W.2d 310 (Mo.App. E.D. 1982)

Martin v. Yeoham, 419 S.W.2d 937 (Mo.App. 1967)

Bramon v. U-Haul, Inc., 945 S.W.2d 676 (Mo.App. 1997)

Hale v. American Family Mutual or American Family Insurance

Wilkerson v. Mid-America Cardiology, 908 S.W.2d 691 (Mo.App. W.D. Jul 25, 1995)

King v. Morgan, 873 S.W.2d 272 (Mo.App. W.D. Mar 08, 1994)

Finn v. Newsam, 709 S.W.2d 889, 891+ (Mo.App. W.D. Mar 18, 1986)

Ford v. Aldi, Inc., 832 S.W.2d 1 (Mo.App. W.D. Apr 21, 1992)

Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362 (Mo. Sep 08, 1969)

Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988)

(Based on 537.765, discussed in Egelhoff v. Holt, para 24 et seq.)

3. For purposes of this section, "fault" is limited to:
(1) The failure to use the product as reasonably anticipated by the manufacturer;
(2) Use of the product for a purpose not intended by the manufacturer;
(3) Use of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger;
(4) Unreasonable failure to appreciate the danger involved in use of the product or the consequences thereof and the unreasonable exposure to said danger;
(5) The failure to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances; or
(6) The failure to mitigate damages.
[33] The subdivisions of subsection 3 of this statute generally constitute the following defenses: *fn3 (1) unforeseeable misuse; (2) foreseeable misuse; (3) assumption of the risk; (4) negligent assumption of the risk; (5) contributory negligence; and, (6) failure to mitigate damages.

§ 323. Negligent Performance of Undertaking to Render Services
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
Therefore, if one renders services for the benefit of another, courts will impose a duty to exercise care apart from the defendant's actual or constructive knowledge.

Survivorship - § 537.020.1 RSMo 1986 Therefore, regardless of whether the lost chance of survival is greater than or less than 50%, it is impossible to prove that decedent's death resulted from the failure to properly diagnose and treat.

Frye held that for an expert witness' testimony to be admissible, the testimony must be based on scientific principles that are generally accepted in the relevant scientific community.
[40] The Frye rule clearly deals with admissibility rather than submissibility. Defendant SLU has cited no case, and we have found no case that permits a party to blissfully ignore the requirement to object to evidence based on the Frye doctrine and then "back-door" the Frye issues into the lawsuit under the guise of a sufficiency of evidence argument.

Inspect every aircraft, FAA did spot checks, and it was within the agency's discretionary authority so it had discretionary immunity.

[96] Plaintiff contends that Count V states an alternative cause of action for prima facie tort. The elements of prima facie tort are:
(1) an intentional lawful act by defendant;
(2) an intent to cause an injury to plaintiff;
(3) injury to the plaintiff; and
(4) an absence of any justification or an insufficient justification for the defendant's act.

Most significantly, while prima facie tort requires an intentional lawful act, plaintiff stated facts which show defendants committed an unlawful act.

(Ford v. Aldi)

[17] It is no longer necessary in Missouri that a plaintiff claiming negligent infliction of emotional distress prove a contemporaneous traumatic physical injury. Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983). A plaintiff will be awarded damages for emotional distress if he or she can show: (1) that the defendant should have known that his conduct involved an unreasonable risk of causing emotional distress, and (2) that the emotional distress is "medically diagnosable" and is severe enough to be "medically significant."

(Based on Keener v. Dayton, para 38, et seq.)

Your verdict must be for plaintiff if you believe:
First, plaintiff was statutorily qualified to bring wrongful death action, and
Second, defendant sold the electric drill, and
Third, the electric drill, as sold by defendant, was defective and therefore dangerous when put to a use reasonably anticipated, and
Fourth, when plaintiff used the electric drill it was in substantially the same condition as when sold by defendant, and
Fifth, plaintiff used the electric drill in a manner reasonably anticipated and, as a direct result of the electric drill being defective, died.

(Based on Nesselrode v. Executive Beechcraft, paragraphs 62 et seq.)

Your verdict must be for plaintiff if you believe:
First, that the defendant sold the product in the course of its business;
Second, the product was then unreasonably dangerous when put to a reasonable use without knowledge of its characteristics;
Third, the defendant did not give an adequate warning of the danger;
Fourth, the product was used in a manner reasonably anticipated; and
Fifth, the plaintiff was damaged as a direct result of the product being sold without an adequate warning;

Based on 31.02(3) [1997 Revision] Verdict Directing -- Res Ipsa Loquitur -- General)

Your verdict must be for plaintiff if you believe:
First, defendant was solely responsible for affixing the Christmas tree to the roof of the car, and
Second, the Christmas tree fell off the car and went through plaintiff's windshield, injuring plaintiff, , and
Third, from the fact of such occurrence and the reasonable inferences therefrom, such occurrence was directly caused by defendant's negligence, and
Fourth, as a direct result of such negligence, plaintiff sustained damage.

Based on Martin v. Yeoham, 419 S.W.2d 937 (Mo.App. 1967), paragraphs 35 and 49, et seq.)

Your verdict must be for plaintiff if you believe:
First, defendant intentionally shot plaintiff with a 45 automatic pistol, and
Second, defendant thereby caused plaintiff bodily harm.
Third, such contact would be offensive to the sense of personal dignity of a reasonable person.

Your verdict must be for defendants if you believe:
First, defendant had reasonable cause to apprehend serious bodily harm to herself, and
Second, defendant did not create the situation which caused the apprehension of the defendant, and
Third, the act of the defendant in discharging a pistol at the plaintiff was in defense against this apprehended bodily harm, and
Fourth, that defendant used only such force as was reasonable and necessary.