77. What is likely to be the dispositive issue in this case?

The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply.

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called «Russian roulette» using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.

Whether the game constituted a joint venture
Whether the friend could validly consent to the game
Whether the friend was also negligent
Whether the man was legally intoxicated when he began playing the game

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C is correct. The issue in this question is contributory negligence. Normally, contributory negligence does not apply on the MBE unless the question states it does. Here, however, none of the other answer choices could be correct. Thus, the question's reference to «traditional defenses based on plaintiff's conduct» must refer to contributory negligence. Under contributory negligence, the plaintiff may not recover if he or she was negligent unless the defendant had the last clear chance to avoid the harm. Here, the friend was also negligent in becoming intoxicated and playing Russian roulette. Thus, if contributory negligence applies as the call of the question suggests, the plaintiff will not recover.

A is incorrect. The phrase «joint venture» can have multiple meanings depending on the context. It is often used to refer to a form of business partnering under which individuals join together to accomplish tasks for a business purpose, which can make each member liable for the tortious business conduct of other members. The facts present no such use of the term here as no business purpose is present. «Joint venture» can also be used to refer to when two or more individuals engage in a tortious activity together. It is relevant to claims in which, for example, a third party asserts a claim against the joint venture tortfeasors and claims strict liability. A joint venture is irrelevant in a claim of one tortfeasor against the other. Thus, this answer choice is incorrect.

B is incorrect. It is likely that consent to this activity would be routinely found to be against public policy, although the consequences of such a determination would vary from state to state. But consent is a defense more appropriately raised in an intentional tort case, not a case for negligence. There is no indication that the friend consented to any negligence, and in any case, she was too intoxicated to give valid consent.

D is incorrect. Unless a person's intoxicated state was forced upon him or otherwise involuntary, it does not immunize him from negligence actions nor does it reduce the standard of care to which he is held. Thus, this answer choice misstates the law.

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77. What is likely to be the dispositive issue in this case?

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