26. At the trial on an action against the grandmother on behalf of the friend, the information above has been admitted into evidence. If the grandmother moves for a directed verdict in her favor at the end of the friend's case, that motion should be

D is correct. A directed verdict (also called Judgment as a Matter of Law) allows judgment if the evidence, when viewed in the light most favorable to the nonmoving party, is such that a reasonable person/jury could not disagree. A directed verdict is entered at the close of the evidence before the matter goes to a jury. There are two potential claims at issue in this question. The first is whether the grandmother can be held vicariously liable for the grandson's tortious act. The grandmother has a duty to exercise reasonable care in the control of the grandson while he is physically within her care or custody. Liability, however, is generally limited to actions that were a known propensity of the child, and thus, foreseeable by the caretaker. A custodian of a child who fails to exercise control regarding the known propensity of that child is generally not vicariously liable for the child's tortious behavior; rather the caretaker is liable for his or her own negligence in failing to control the child. The facts clearly indicate that the grandson's behavior was not foreseeable to the grandmother.

The second issue, however, is whether the grandmother had a duty of reasonable care to the plaintiff to take affirmative measures that would keep her grandson from using the gun. When the grandmother failed to remove the bullets from a stored gun and then forgot to relock the gun case, it was foreseeable that her grandson would find and play with the gun; she thereby failed in her duty to control the grandson's use of a dangerous instrumentality.

A is incorrect. This answer arrives at the wrong conclusion. While the grandmother may not generally be liable for her grandson's tortious activities, she is liable for her own negligence.

B is incorrect. The negligence occurred when the grandmother failed to remove the bullets from the gun and lock the cabinet, not several days later, when she failed to recall that she did not lock it.

C is incorrect. This answer reaches the correct conclusion but is not the best answer. When the grandmother failed to remove the bullets from a stored gun and then forgot to relock the gun case, it was foreseeable that her grandson would find and play with the gun, thus failing in her duty to control the grandson's use of a dangerous instrumentality.