Chemco manufactured a liquid chemical product known as XRX. Some XRX leaked from a storage tank on Chemco's property, seeped into the groundwater,flowed to farmer's adjacent property, and polluted Farmer's well. Several of Farmer's cows drank the polluted well water and died.

If farmer brings an action againts Chemco to recover the value of the cows that died, Farmer will

(A) prevail, because a manufacturer is strictly liable for harm caused by its products

(B) prevail, because XRX escaped from Chemco's premises

(C) not prevail, unless farmer can establish that the storage tank was defective

(D) not prevail, unless Chemco failed to exercise reasonable care in storing XRX.

A. Chemco is strictly liable. Strict liability attaches to
inherently dangerous activities or things, like deadly chemicals.




On Jan 30, 2010, at 7:39 PM,

A - strict liability

D - famer must prove Chemco negligently stored chemical to prevail

A fails because even though the chemical was inherently dangerous (the cows died) the activity was normally conducted in the area

B fails because it mistates law

C fails because Chemco is not liable for the manufacturers defective product

Farmer boy will prevail because the chemical escaped.  B Clear Res Ipsa,  however that's not the only winning theory. ________________________________ From: "

ThomCA - You are misunderstanding the "common usage" aspect. There are no facts that indicate that chemical production is of common use in that community. This consideration does not ask whether the production of chemicals followed the common practice or use of the trade. That would be a consideration of negligence, not strict liability.

My vote would be D - strict liability, but I might be wrong.

Legalgooner, you contradicted yourself. You cannot believe that the defendant is strictly liable and then pick "D' as your answer.

However, I think "D" is the answer, but NOT for the reason you stated. The plaintiff must proof that the defendant was negligent.

(B) prevail, because XRX escaped from Chemco's premises

On Sun, Jan 31, 2010 at 3:39 AM, <

A would be the best answer
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From:

True, thanks for the explanation
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-----Original Message-----
From:

The facts that support that storing chemical is a common activity are straight forward. Chemco is a chemical manufacturer in the business of making chemicals(XRX. The fact patten states that XRX was leaked from a stoarage tank on Chemco's property which means implicity that storing chemicals was a normal activity at Chemco's physical location.

Another reason why D is a better answer is that A and B imply the same thing.

My mistake, I meant to say A, that Chemco would be liable under strict liability for abnormally dangerous activity. Again, the "common use" aspect of the question is not met at ALL. A perfect example to think of would be driving a car. Today, driving a car would be a common use in society today. However, if you drove a tank on the roads today, that would NOT be a common use in the community. While I am not sure if A is right, it would not be wrong because of common use. Dangerous chemicals are typically indications of abnormally dangerous activity, but again, I am not certain.

The 3 theories of strict liability in Tort are product liability, Abnormal activity, and dangerous animal.Storing chemical is falls under none of the above, though extra care must be used. In the this case the defendant failed to exercise reasonable care and therefore negligent. B

B



________________________________
From: "

"Hi" can you tell us the answer now?

I would say A.

I'm sticking wit A because it a strict liability question and D speaks to negligence.
------Original Message------
From:

The answer is B and I just have the answer and no explaination because it is from NCBE released questions. I fail to understand why B is the right answer. The facts nowhere mentions that the chemicals are dangerous and therefore strict liability will not apply. I don't know if we can apply res ipa loquitor but thats the only way in which B is the right answer according to me. I marked D as correct and copied it here to clarify and get explaianation as to why B is the right answer. OR may be it is strict liability!!!

OK, I've4 got a theory as to why B is correct.

A is out because Chemco didn't manufacture the tank or in the stream of commerce. So strict product libabiliy is out

C and D are out becauase the say that Chemco could only be found liable under one and only one theory. The word unless implies this and Chemco could be liable under several theories

This leaves only B, which speaks to the issue of causation. As the only possible right answer left on the table, B becomes the best choice.

Anyone agree?

This is a case where the MBE can really sock-it-to-you unless you truly understand the MBE testing method.

The best answer is a correct statement of black letter law. If there is no correct statement of black letter law... choose a correct statement of fact.

Next, rework the statement so that you understand it. Lets break down the answers given:

A. A manufacturer is strictly liable for the harm caused by its product.

B. XRX escaped from the the manufacturer's property.

C. The farmer must establish negligence in the storage of XRX to prevail against Chemo

D. The farmer must establish that Chemo did not use reasonable care in storing XRX.


Answer A is wrong. Many of you answered A becuase the wording confused you. Recall, Strict liability is based upon (i) Wild Animals, (ii) Abnormally Dangerous Activity; (iii) Product Defect.

Many of you thought A was about Abnormally dangerous activity. It was not. Read it again: Key words= manufacture + products

You do not have to be a manufacturer to be strictly liable for an abnormally dangerous activity. Answer A said "Manufacturer" is strictly liable (notice it did not say escaping or inherently dangerous... therefore the answer supposed that the manufacturer is liable under most if not all circumstances. For a manufacturer to be strictly liable for harm caused by its product under most if not all circumstances... the cause of action must be Product Defect.

Product Defect: (a) design defect; (b) manufacturing defect; (c) warnings. There are no facts to support Product defect. Farmer cannot prevail under Manufacturer's Strict liability because Farmer cannot prove product defect. Therefore A cannot be correct. No product liability.

C is wrong because it says that the Framer can "only prevail" if Framer can prove negligence. In order for C to be correct, negligence has to be the only cause of action. You have identified that Abnormal Activity is a legit CoA. Therefore, C is wrong.

D is wrong for the same reason as C.

B. is right because... it states a true fact... XRX escaped. It is a fact that is necessary to support CoA Abnormal Activity.

Good luck to you all

Jimmy,

Thank you and kudos to you for your thorough explanation of both the MBE method/context as well as the black letter laws/causes of action.

Your response here was especially helpful because you "translated" the MBE answers. That's a great exercise for anyone to use--re-word the responses in simple, more clear statements.

I appreciate your time and thoughtfulness!

Rock on!

Bryan

I agree, that is a great explanation. I was caught up on exactly what you mentioned regarding the abnormally dangerous activity. Thanks for your time there, as that is helpful to remember how reading comprehension is key here. Back to work!

http://ats.stmarytx.edu/~lawlib/exams/Johnson,%20V/MBE%201997.pdf

On Sat, Jan 30, 2010 at 4:39 PM, <

Thank you