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confusing torts MBE question
Last Post 08/06/2016 5:58 PM by Bob II
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02/18/2012 9:31 PM
Author: xoyo00 [21813]
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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.

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02/18/2012 9:41 PM
Author: melissabrooks [70]
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I'm going with A.

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02/18/2012 9:45 PM
Author: stulaw11 [92]
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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.

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02/18/2012 9:46 PM
Author: Lito [21813]
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A. Based on strict liability. Bobcat is a wild animal.

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02/18/2012 9:51 PM
Author: Danmed [21813]
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Definitely A. The Explanation will have some BS explanation about how the Vet's negligence was foreseeable.

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02/18/2012 9:51 PM
Author: Con [21813]
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D. But for the vets failure to remove the claw, the slashing would not have occurred.

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02/18/2012 9:56 PM
Author: xoyo00 [21813]
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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).

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02/18/2012 10:54 PM
Author: Lito [21813]
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That is confusing alright!

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02/19/2012 12:32 AM
Author: xoyo00 [21813]
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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.

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02/19/2012 4:53 AM
Author: lordjay [36]
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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.

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02/19/2012 5:56 AM
Author: Sean [21813]
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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

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02/19/2012 9:13 AM
Author: right answer [21813]
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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.

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02/19/2012 11:11 AM
Author: Sean [21813]
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The key is that he warned. Only liable to unknown trespassers for hidden dangers, and this danger was not hidden.

So, "C."

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02/19/2012 11:13 AM
Author: Sean [21813]
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Sorry, to *known* trespassers.

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02/19/2012 12:54 PM
Author: failcopter [21813]
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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.

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02/19/2012 1:18 PM
Author: Sean [21813]
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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.

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02/19/2012 3:21 PM
Author: failcopter [21813]
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Makes sense.

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02/19/2012 6:46 PM
Author: alnjd0722 [21813]
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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. :)

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02/19/2012 6:56 PM
Author: alnjd0722 [21813]
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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. :)

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02/19/2012 10:17 PM
Author: Known trespasser [21813]
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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.

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02/20/2012 12:58 PM
Author: failcopter [21813]
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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.

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02/21/2012 7:31 AM
Author: NY PASSER [21813]
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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"

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02/21/2012 4:09 PM
Author: new info [21813]
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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.

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04/12/2012 1:44 AM
Author: Len [21813]
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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.  


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07/20/2016 4:51 PM
Author: BYU Guy [21813]
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I'm late to the game. But just to add to the confusion. Emmanuel Strategies & Tactics has an almost identical question and states an opposite rule. According to Emmanuel, because the claim is for strict liability, "the walker's status as a trespasser will not relieve the homeowner of liability." Confusing to say the least.

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07/22/2016 12:27 PM
Author: Hmm [21813]
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I went with E: The Bobcat will recover because it got aids from scratching the smelly pirate-hooking tresspasser

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08/06/2016 5:44 PM
Author: Bob [21813]
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1. What is "bet" in answer choice D?
2. Adachi (former bar grader) wrote a book on the mbe. He states that some questions cannot be answered even by the most talented minds in law. He calls these questions something like "the unanswerable question". They are few in number. But his point is not to waste time or get upset with one question when there are 99 other questions to answer. My rule is that the average passing student automatically cannot answer 10 out of 100 mbe questions. They were not taught the rle of law or the application was not taught to them or "trick" (reasoning) or the question itself is subject to debate even by the NCBEX. 1 out of 500 questions if not 1 out of 1,000 questions is thrown out even by the NCBEX because 2 choices are right or other reason.

That said i wish to point out of you check Adachi's answers to his questions and Seigal's answers to his questions as well as other experts you find once in a blue moon they differ as to the answer to a similar question. Especially when they make up their own questions. I have sen a law professor write he could not tell you why the bar chose a answer to a particular question in one case.

It is good you are tracking down answers and putting in the time. I did Adaptibar and loved it. Except the prtce and limited time of use. I wish they gave it to you in law school with questions formatted timing wise to the topics in the course.

You should not have to do Adaptibar if you paid for Barbri.


The question posed is best answered by process of elimination. Its goal is to focus on strict liability and trespassers. I see negligence on the part of the landowner because he did not check the claws "reasonably thoroughly" for the still present nail in the claw. And under strict liability or negligence theory he has liability for the misdetection. Technically because the facts do not state he was "unreasonable" in check the claws we cannot assume he was negligent. But it is a possibility. That leaves strict liability. But because the woman is a trespasser strict liability does not apply. If you "back into" this question you are stuck with THEIR answer choices. Even though you would have a different conclusion based on a written analysis to explore or at least raise issues. When you cannot see the answer you go by proces of elim9ination leaving the "best" answer. Jef Fleming uses the phrase "back into" it. If you cannot see the tort or issue from a checklist you back into it by checking off each one until you have one left on the list. Hence, "back into". (lawprepare.com)
Bar examiners are good at "limiting" your choices to test you on one rule of law.

Try this: write your own question like for torts or crimes. You will see as you do you sometimes get "background" torts or crimes in the facts that must be "eliminated" from analysis on essays because students do not have time to write on them. So you control the interrogatory to eliminate students writing on them. The same is true for multiple choice questions (mcqs). But not only can you control the interrogatory you can also control the answer choices something you cannot do on essays. (You cannot control what the student chooses to write on or derive as the conclusion/best answer). So in your question even though I do not know what "bet" means I can see if you cross off the choices one at a rime you end up with c.

The question is a head spinner and I personally probably would have missed it. But that is what practice is for because now I know if I see this head spinner on the mbe I can pick the answer faster correctly because I have seen it before and chose what barbri says not me as the putative answer that is "best".

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08/06/2016 5:58 PM
Author: Bob II [21813]
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Point: If you drive your car into the back yard of a man who owns a tiger and crash into the cage of the tiger and the tiger bites you the owner is not liable under strict liability because you are a trespasser. The head spinning for the questions starts with rules involving negligence and frequent trespassers and involves a wild animal involving strict liability. Throw in the landowner missing the claw still having a nail in it and you also have the negligence of the veterinarian. Somethings tells me the barbri author of the question threw too many things into the facts making the answer questionable. But by process of elimination arguably the best answer is C.

The case resolves around negligence or strict liability. No intent is present on the landowners part.

Give me a minute to write up my analysis.

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