Answer For MBE Question From October 29th
(D) is correct.
Issue: Whether the factory breached a duty of care to the bed and breakfast.
Rule: Generally, every person owes and is owed a duty to behave as a reasonable person would under the same or similar circumstances. Negligence occurs when the following elements are established: (1) duty of care; (2) breach; (3) damages; and (4) actual and proximate causation. Under tort law, an injured party must also act reasonably to minimize (mitigate) loss or injury. Where the damages are unnecessarily aggravated or increased through plaintiff’s failure to do so, the additional damages are not recoverable. While plaintiff has the burden of proving damages, defendant has the burden to prove plaintiff’s failure to mitigate damages. Factors considered in determining the reasonableness of plaintiff’s failure to mitigate damages include: the risk involved in the mitigating conduct; the probability of success; the pain and effort involved, and whether plaintiff could financially afford the course of action. Note that although most avoidable consequences cases involve plaintiff’s unreasonable conduct after an accident, the issue also may arise where plaintiff acted unreasonably prior to an accident or event.
Analysis: Here, apply the elements of negligence to determine whether the factory acted unreasonably. The issue here is whether the factory breached a duty to the bed and breakfast by acting unreasonably. The facts do not indicate that the factory acted unreasonably. Remember that the standard is whether the factory’s conduct met the standard set by a reasonable factory under similar circumstances and the facts here specifically state that other factories do not typically install the odor-reducing equipment. Thus, it seems unlikely that the factory would be found to have acted unreasonably (though the cost of purchasing and installing the equipment would be relevant to determining whether an injunction should be issued in a nuisance action).
(D) is correct. The plant did not act negligently as it acted in accordance with industry standards and thus acted reasonably under the circumstances.
(A) is incorrect because whether or not plaintiff’s failed to mitigate goes to how much plaintiff can recover, not whether plaintiff can recover.
(B) is incorrect because the issue is not whether equipment would have reduced the damages, but whether it was unreasonable under the circumstances (and given the standard set by other “reasonable” factories) to not install the equipment.
(C) is incorrect because nuisance is a separate action from negligence. It may be that the factory is a nuisance for which the bed and breakfast may receive monetary damages or an injunction, but this does not mean that the factory acted negligently.