Comments on: MBE Question of the Day #41

By: Maryann Herman

Maryann Herman — Tue, 09 Feb 2010 15:28:07 +0000

Answer D is correct. Julia was negligent in failing to take precautions to prevent the explosives from being stolen. Here, the specific risk in not taking such precautions is that a thief will steal them and use them to cause damage, the precise risk which actually occurred. Therefore, the issue of proximate cause will not prevent liability when the assumption called for in this choice is true-Julia will be liable if she should have maintained a higher level of security in the laboratory.

Answer A is incorrect. While this question involves the explosion of an ultrahazardous substance, that alone is not the basis for liability. Even in a strict liability situation, the plaintiff must still establish that the action of the defendant in making and possessing the ultrahazardous substance was the proximate cause of the plaintiff’s injury.

Answer B is incorrect. This response establishes nothing more than “but for” causation between the creation of the explosive and the ultimate harm. That alone is not enough to establish liability when the explosion was caused by the criminal acts of stealing the explosive and detonating it. Proximate cause is still an issue.

Answer C is incorrect. Julia was negligent in failing to take precautions to prevent the explosives from being stolen. Here, the specific risk in not taking such precautions is that a thief will steal them and use them to cause damage, the precise risk which actually occurred. This response is incorrect because it states that Julia cannot be liable because the harm is the result of the criminal act of a third person. An individual who is or should be aware that a criminal act could be committed if she does not take certain precautions and then fails to take those reasonable precautions to prevent the crime can be held liable in negligence.

By: ThomCA

ThomCA — Tue, 09 Feb 2010 07:07:57 +0000

I’ll pick a contrary answer to what others have chosen so far, namely B. Given the lab was licernsed, A is out because one can assume the facts don’t satisfy all the elements of ultrahazardous activity, i.e., the activity is one not normally conducted in the area. C is out because if Julia is negligent then she is responsible for the foreseeable consequences of her conduct, namely the deliberate criminal use of explosives. D is out because the facts tell us that the alarm system would have prevented the theft, which means it provides a reasonable standard of care.

By: mimi

mimi — Tue, 09 Feb 2010 04:27:16 +0000

answer D. c. Causation in strict liability – are the same as negligence but they are narrowly applied by the courts so that strict Liability does not reach too far. The harm that results from the activity must be within the specific type of harm that causes it to be strictly liable.

By: BS

BS — Tue, 09 Feb 2010 02:55:42 +0000

I would love to represent Julia. (Two weeks later? yeah right.)

What were you thinking letting terrorists carry their plastic explosive laden luggage on your airplane, Transcontinental Airlines?
Is that normal business practice?
Don’t you think you should maintain a higher level of security?

By: Ken

Ken — Mon, 08 Feb 2010 22:50:42 +0000

ultraharzadous subtance does pose a forseeable harm within risk for criminal acts —- unless = only if

By: Wrelyea

Wrelyea — Mon, 08 Feb 2010 21:24:24 +0000

One is not typically responsible for unforeseeable criminal acts. Answer D, is the best answer because it addresses the foreseeability aspect.

By: BV

BV — Mon, 08 Feb 2010 21:20:50 +0000

I’m going with C (as in “Cheese”, “Close Call”, and “Correct” in my humble opinion). Although Julia’s negligence was the cause-in-fact of the harm, I don’t believe it was the proximate cause. The deliberate criminal acts of the terrorists broke the chain of proximate cause. Nothing in the facts suggests that the criminal acts of the terrrorists were forseeable (i.e. nothing suggesting a high risk of theft and criminal use of the plastic explosive). Thus, Transcontinental Airlines was not in the zone of foreseeable risk.

By: RK

RK — Mon, 08 Feb 2010 20:55:06 +0000

D is the best answer.

By: shahin

shahin — Mon, 08 Feb 2010 20:12:45 +0000

Answer D

By: gmevans

gmevans — Mon, 08 Feb 2010 19:01:11 +0000

I believe the best answer is D because the facts state that Julia was negligent in securing the ultrahazardous materials and thus it is foresseable that they could be stolen.