April 21, 2021

Do you want to be successful on your multiple-choice law examinations?

Todd Berman

You can, and will, be successful on your multiple-choice law examinations by always choosing the best answer that is:

  1. Most responsive to the call of the question;
  2. A correct statement of applicable law; and (not “or”)
  3. Best supported by the facts presented.

Contextually, this post provides one multiple-choice question*, followed by proper methodology and sound legal reasoning to its correct answer option. 

The power company operated a nuclear power plant on the seashore just outside the city and sold electricity generated by its operations to city residents. To cool its equipment, the power company drew water from the ocean and piped it through portions of its plant. Because this operation made the water highly radioactive, the power company stored used water in a series of large concrete holding ponds. The water stored in this fashion was subject to a series of procedures designed to “neutralize” it by removing the radioactivity before it was returned to the ocean. Because of an earthquake, one of the concrete holding ponds cracked, permitting several million gallons of neutralized water to escape. Although the escaping water was not radioactive, it caused substantial damage to the fields of a farmer as it passed over them.

If the farmer asserts a claim against the power company for the damage to his realty, should the court find for the farmer?

A.    Yes, because operating a nuclear power plant is an abnormally dangerous activity.
B.    Yes, because water is a substance that is likely to do great harm if it should escape from captivity.
C.    Yes, because it was unreasonable to operate a nuclear power plant in an area where an earthquake could occur.
D.    No, because the damage resulted from an Act of God.

Start with the “call of the question”, which is what the examiners are asking. Here, as is most common, the call is in the middle of the question (where it asks, “If the farmer asserts a claim against the power company for the damage to his realty, should the court find for the farmer?”). The facts are at the top of the question, and the answer options are at the bottom.

Starting with the call often allows you to identify the tested subject and narrow the issue. Here, a private party (“farmer”) is asserting a “claim” against another private party (“power company”) “for damage to his realty.” This strongly suggests Torts as the tested subject. 

Importantly here, “a claim” is general and not specific to an issue “for the damage to his realty” such as on a land tort theory of negligence, intentional tort, or strict liability. This indicates that you should consider if “the court should find for the farmer” on any type of claim, most likely analyzing these three theories. 

Next, read the answer options followed by the facts, or the facts followed by the answer options. You are encouraged to try it both ways to determine which is more effective for you.

In the answer options here, key language of “abnormally dangerous activity”, “water”, and “escape from activity” raises an educated guess that strict liability activities on the land are a potential claim. “Unreasonable (conduct)” plus “Act of God” raises another educated guess, that negligence is a potential claim. This puts you in the proverbial driver’s seat when analyzing the facts.

The language “for damage to his realty” in the call suggests a possible intentional tort claim on a theory of trespass to land. However, the answer options do not include related language such as “intentional entry.” This leads you to read the facts with negligence and strict liability in mind more than intentional tort.

Notice how much can be gleaned by reading the call and answer options before even reading the facts.

A is a tempting answer because operating a nuclear power plant will often be found an abnormally dangerous activity.

However, for A to be correct and the court to find for the farmer in response to the call, strict liability law requires that the farmer suffered damage of the type that makes operating a nuclear power plant an abnormally dangerous activity (i.e., damage caused by radioactivity). Because the facts provide the “neutralized” water (quoted by the examiners for emphasis and factually stipulated as “not radioactive”) caused the farmer’s damage, A cannot be correct. 

B appears to be a much better answer than A because it correctly states the strict liability law from the case of Rylands v. Fletcher. It is also consistent with the facts here that water did do great harm (“substantial damage” in the facts) when it escaped from captivity (in the form of the holding ponds). Lastly, it is responsive to the call as to why the court should find for the farmer.

Hold B as a good answer in abeyance, and then consider C and D if either is a better answer than B. Again, the best answer is always the correct answer.

In C, the term “unreasonable” raises negligence, which requires proximate cause for a prima facie case. However, “could occur” in C does not appear sufficiently foreseeable for the court to find proximate cause. This is especially so since “Because of an earthquake” is the only fact provided regarding the earthquake, which alone does not indicate that the earthquake was foreseeable.

D is supported by the fact that the damage did result from an Act of God (the earthquake). However, this fact alone would be insufficient for the court to find against the farmer (responding to the call) because negligence law would allow the court to find for the farmer if the power company failed to exercise reasonable care in preventing foreseeable results of an Act of God.

Based on the above proper methodology and sound legal reasoning, B is the best, and therefore correct, answer option because it is:

  1. Most responsive to the call of the question;
  2. A correct statement of applicable law; and (not “or”)
  3. Best supported by the facts presented.

*Reproduced with the permission of CCH Incorporated from Strategies & Tactics for the Finz Multistate Method, Fifth Edition (ISBN 9781543805963), by Steven R. Finz, Edited by Alex Ruskell, Esq., ©2019.

Originally published on https://abaforlawstudents.com/ by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Todd Berman

Todd Berman

Todd Berman

Professor

Todd Berman is admitted in California, where he is a law school professor and tutor for the bar and related examinations while pursuing an entrepreneurial idea. He currently serves in leadership roles within the ABA Young Lawyers, GPSolo, and Law Practice Divisions. Todd also actively participates in the ABA Business Law Section and was honored with an ABA Star of the Quarter Award.