BUS LAW MIDTERM TWO
The burden of proof in a tort case is a preponderance of the evidence. a. True b. False
True
Generally speaking, statements made during judicial proceedings are absolutely privileged against defamation liability. a. True b. False
True
t/f: Under a "mixed" comparative negligence system, a plaintiff recovers nothing where the plaintiff's own negligence was more than 50% (or 50% or more) responsible for the plaintiff's injury.
true
t/f: To say that a breach of duty is an actual cause of the plaintiff's injury is to say that if the breach had not happened, the injury would not have occurred either.
true (This is just a different way of stating/describing the "but-for" test that goes with actual causation.)
t/f: An agent acting within the scope of her employment will generally be immune from liability for the torts she commits, because her employer will be held liable instead.
f (No, an agent is always/remains liable - legally responsible for his/her own torts. Whether he/she has the money to pay for such damages (vs. the employer having and being able to do so) is a different matter and issue!)
For a battery to occur, the victim must be aware of a harmful or offensive contact at the time it occurs. a. True b. False
false
t/f: In determining whether the defendant breached a duty, negligence law holds people with mental deficiencies to the same reasonable person standard as normal people
false
t/f: In a case involving an ultra-hazardous or abnormally dangerous activity, the plaintiff must prove recklessness on the defendant's part. Any lower fault standard would be unfair to the defendant in such cases.
False. (This is a situation where strict liability is applied! So, recklessness has nothing do to with it/is not an element of strict liability.)
There is no tort liability for fraud where the defendant did not actively make a false statement, and instead merely failed to disclose something. a. True b. False
False. (This would be an example of fraud in the form of non-disclosure, which is a type of fraud -- see the fraud material in the outline in your University Readers textbook.)
In an invasion of privacy lawsuit involving the public disclosure of private facts, the defendant will escape liability if the facts he disclosed were true. a. True b. False
False
Television and radio broadcasts usually are classified as slander rather than as libel because they involve spoken words rather than written ones. a. True b. False
False
If a defendant is liable in tort, he cannot be criminally prosecuted for the wrongful behavior that made him liable in tort. a. True b. False
False (E.g.-- a drunk driver who injures someone can be sued for battery and damages in a civil tort lawsuit, and, also prosecuted by the people/the government in a criminal proceeding for DUI.)
Because some intentional torts involve behavior which is also criminal, plaintiffs in civil intentional tort lawsuits must prove all the elements of their claim beyond a reasonable doubt. a. True b. False
False (It is "preponderance of the evidence")
Jill tells a group of people that Tom, an investment advisor, steals from his clients. Tom sues Jill for slander. Tom must prove special damages in order to recover. a. True b. False
False (No, because this is an example of slander per se. See the University Readers textbook for details and discussion of slander per se and how when it applies plaintiffs do not have to prove special damages at trial.)
Assault requires harmful or offensive physical contact. a. True b. False
False (No, it's battery that requires this!)
Statements made in judicial proceedings are conditionally privileged against defamation liability. a. True b. False
False. (They are absolutely privileged. See the discussion in your University Readers textbook on the distinction between absolute and conditional privileges/defenses in the context of defamation lawsuits.)
Defamation liability requires publication of the defamatory statement to an appreciable number of people. a. True b. False
False. (It can be to only one other person other than the plaintiff.)
The general rule is that the plaintiff must have had knowledge (i.e. be aware) of his confinement in order to recover for false improvement. a. True b. False
True
T/F: Basically, negligence is a subjective mental state of inattention, a failure to think, etc.
false (It's objective ... based on the mythical "what would a reasonable person have done" standard.)
For which of the following oral statements must the plaintiff prove special damages in order to recover for defamation? "Your accountant Joe was caught speeding last week." "Jim has syphilis." "Mary murdered her baby." "Your attorney Susan is a complete incompetent."
A. (Answers B, C and D are all examples of slander per se; "A" is not, and therefore requires the plaintiff to prove special damage to recover. Again, see the material on defamation and slander per se in your University Readers textbook.)
An agent hired to manage a business such as a restaurant normally has implied authority to: a. Make repairs to the restaurant b. Sell the business c. Borrow money for the business in the principal's name. d. Allow third parties to acquire a lien against the business
A
In which of the following situations is an employee's tort most likely to be outside the scope of his employment? a. Where the employee committed the tort solely to advance his own interests, and not at all to advance his employer's interests. b. Where a sales employee whose assigned territory is the city of New York committed the tort three blocks outside the city limits. c. Where the employee committed the tort three minutes after his assigned quitting time. d. Where the employee's tort also was a minor crime (e.g., speeding or jaywalking).
A
Truth is a complete defense for: Defamation. The form of invasion of privacy involving the public disclosure of the private facts. Both of the above. Neither of the above.
A
Which of the following is true about the so-called "tort reform" movement? a. One example of the movement's success is the tendency for states via their legislatures to make it more difficult for plaintiffs to recover punitive damages, or to limit their amount. b. Tort reformers blame the liability insurance "crisis" on the insurance industry and nothing else. c. Tort reformers like to use the courts to shoot down legislation making it tougher for plaintiffs to recover and/or restricting the damages they can receive. d. Tort reformers have had no practical successes despite their many years of agitation.
A
Dave tells Dora that Phil, a financial advisor, has been stealing money from his clients. Dora then repeats Dave's statement to Tom, telling Tom that the information comes from Dave. All these statements are oral, defamatory, and false. Phil sues Dave and Dora for defamation. Which of the following is true? Don't consider defenses and privileges. A. Phil can recover against Dave and Dora without proving special damages. B. Because Dora only repeated Dave's statement and identified Dave as its author, she can't be liable to Phil. C. Because Dave only communicated his statement to Dora, and not to an appreciable number of people, he can't be liable to Phil. D. Phil must prove special damages in order to recover against Dave and Dora.
A ( This is an example of slander per se. The others are not. Thus he does not have to prove special damages. Again, see the material on slander per se in the defamation section/outline in your University Readers textbook. Also, remember that repeating a defamatory statement that you heard do another can expose you to liability under the tort of defamation! That is why Dora is in trouble here as well!)
Implied authority: a. Is based on what the principal communicates to the agent. b. Must be stated in words. c. Is based on what the principal communicates to the third party d. Cannot be changed or revoked once it has been given.
A ("B" is wrong because of the word "must" and "C" is wrong because this describes apparent authority, not implied authority.)
Parsons, a pedestrian watching a construction project, sees that a metal beam being lifted by a crane is about to drop on some unsuspecting workers. Thus, he rushes to the scene to warn the workers. For his efforts, he is struck by the falling beam. He sues the construction company in negligence. Which of the following is true? Assume that the falling beam was caused by a breach of duty on the company's part. a. Parsons will recover against the company. b. Parsons will not recover, because it is not foreseeable that a pedestrian would run onto the scene of an accident such as this. c. Parsons will not recover, because he knowingly and voluntarily assumed the risk of being struck by the beam. d. b and c are both true.
A ("C" is not a correct answer because he did not really "voluntarily" assume this risk. Further, most reasonable people would probably say that when you/a defendant creates a risk like this, it's reasonably foreseeable that a person such as Parson's would try to come to the rescue of others and be harmed in the process - i.e., that's why "B" is wrong.)
Which of the following is least likely to involve liability for violating the so called "right of publicity"? In each case, assume that the plaintiff's name, likeness, work, etc. was appropriated without the plaintiff's permission. a) Using the work of an unknown artist to illustrate the T-shirts one makes and sells. b) Using golf star Tiger Woods' picture to sell beer. c) Using a picture of a famous and recognizable racecar driven by a famous racecar driver to sell chewing tobacco. d) Using Madonna's name to sell women's apparel.
A (Note that "A" does not involve a famous person; the other three choices do.)
Which of the following involves putting the plaintiff in a false light, but is not defamatory? a) Signing a loyal liberal Democrat's name to a "George Bush for President" ad. b) Signing a pacifist's name to a petition that called the 9/11 terrorists "heroes" and urging more such actions. c) Identifying the plaintiff, a devout Christian conservative, as a proponent of sexual relations between men and young boys. d) Identifying the plaintiff, a strong opponent of abortion, as a proponent of infanticide.
A (The answer is "A" because this statement, while false, is probably not "defamatory" as that term is defined in the outline in your University Readers textbook and as the law requires.)
Which of the following requires that the agent be an employee? a. Tort liability under respondeat superior. b. Direct tort liability c. The principal's contract liability d. The agent's contract liability
A (and remember that this doctrine only applies to employees, not independent contractors.)
Doris locks Phil in a first floor room. Phil sues Doris for false imprisonment. Which of the following is true? a) Doris would escape liability if she let Phil out of the room after 10 minutes. b) According to some courts, Doris would escape liability if Phil slept through the entire period that the door was locked and thus was unaware that he was being obtained. c) If Phil could easily have escaped through an open window, Doris still is liable. d) Doris would not be liable if Phil could have escaped by traveling two miles through a narrow, filthy, rat-infested sewer line that periodically floods with water.
B ("A" is not correct because 10 minutes is probably not enough/adequate. "C" is not correct because if Phil could easily escape/walk out, he needs to/should do so!. "D" is not correct because it's unreasonable to expect him to do this - two hours in a sewer with rats??)
The Gigantic State University Hospital often would administer experimental drugs to indigent patients that it was forced to treat. This was without the patients' knowledge or consent. After one of the patients suffered physical injury from the drug administered to him, he discovered what had been done and sued the hospital. The patient can recover for: Assault. Battery. Assault and Battery. Neither assault nor battery.
B (Assault requires the plaintiff to feel "fear or apprehension" which, you obviously can't feel if you are not aware of the defendant's act. A battery can occur even if/when you are not aware that the contact has been made.)
Phillips hires Ace to collect a debt from Thomas. He tells Ace: "I'll leave the methods up to you, but make sure you get the money." As it turns out, Ace is a violent person with a history of getting into fights at the slightest provocation. Phillips could have discovered this if he had done even the slightest check on Ace's background, but he just didn't bother. When trying to collect the debt, Ace beats up Thomas after Thomas calls him a "sick little slime ball." Thomas sues Phillips. In this case: a. Phillips is liable to Thomas under respondeat superior. b. Phillips is directly liable to Thomas c. Phillips is not liable to Thomas because Ace did not act within the scope of his employment d. Phillips is not liable to Thomas because Ace is an independent contractor.
B (The answer is not "A" because this particular tort (battery) would most likely be deemed by a jury to be "outside the scope" of the employment relationship. Also, the fact that the employer failed to conduct even a basic background check that would have turned up the employee's violent background seems to be pretty strong evidence of the employer himself being negligent (i.e., directly liable for the employee/agent's tort)!!)
Generally speaking, which of the following is least likely to subject to strict liability? a. The manufacture and sale of defective and unreasonably dangerous products. b. The practice of medicine c. Blasting d. On-the-job injuries.
B (because this is providing a normal and everyday service, not a product!! See the strict liability outline in your University Readers textbook. A is wrong because that is the test for strict product liability when defective products are involved. B is wrong because blasting is an ultra hazardous activity. D is wrong because this is a workers' compensation situation. Again, see and read closely the strict liability material in the outline in your University Readers textbook.)
Which of the following is based on what the principal somehow communicates to the third party and the third party's reasonable beliefs about that information? a. Express authority. b. Implied authority. c. Apparent authority. d. Substantial authority
C
Due to Dave Defendant's negligent driving, his car collides with a car driven by Myra Mason. As a result of the collision, Myra's car collides with a telephone pole, causing it to fall. The falling pole then takes out some electrical power lines. The resulting power outage causes the heater in Frank Fish's aquarium to go out, killing ten of his valuable tropical fish. Frank sues Dave in negligence. In this case, the best reason why Frank will not recover is that: a. The loss of his tropical fish is not "actual injury" b. There is no actual (or "but-for") causation between the breach of duty and the injury. c. There is no proximate causation between the breach of duty and the injury. d. The falling telephone pole is an unforeseeable superseding cause.
C (I.e., the forseeability test of proximate causation is not satisfied. The answer is not "D" because the explosion was a natural result of his negligent act -- it was not a new independent and outside event/force that came in and injured the plaintiff.)
If an agency agreement touches on compensation, but does not state the amount of compensation to be paid by the principal to the agent, the agent is: a. considered to be a gratuitous agent (i.e., one who works for free). b. entitled to receive the market price or customary price for his services, or the reasonable value thereof, whichever is appropriate. c. entitled to receive one-half of the profits made by the principal in connection with the matters handled by the agent on the principal's behalf. d. not entitled to be reimbursed for expenses incurred while handling theprincipal's business.
B
Which of the following is absolutely privileged in a defamation case? Statements made within a corporation. Statements made in legislative proceedings. Statements made to protect one's own interests. Statements made to advance the interests of others.
B
Which of the following is an element of the tort of intentional infliction of emotion distress? a) Special damages. b) Outrageous conduct. c) Actual malice. d) Apprehension.
B
Which of the following is conditionally privileged? Statements made during legislative proceedings. Statements made to protect the interests of others. Statements made between husband and wife. Statements made during judicial proceedings.
B
Which of the following is not an effect of ratification by the principal? a. It binds the principal to an unauthorized contract. b. It binds the agent to an unauthorized contract. c. It releases the agent from his liability on an unauthorized contract. d. a and b are not effects of ratification
B
Which of the following requires widespread publicity? Defamation. The form of invasion of privacy involving the public disclosure of the private facts. Both of the above. Neither of the above.
B
Potter dies in his sleep from smoke inhalation caused by a hotel fire. Although the fire was not the hotel's fault, Potter's estate sues the hotel in negligence for maintaining inadequate fire exits. Which of the following is most true? You can assume that the hotel's fire exits were in such terrible shape that they amounted to a breach of duty under the reasonable person standard. Due to lenient local laws, however, they did not violate any statute or regulation. a. The hotel is not liable because it did not violate any statue or regulation b. The hotel is not liable because its breach of duty was not an actual (or but for) cause of Potter's death. c. The hotel is not liable because Potter assumed the risk of encountering inadequate fire exits by purchasing a room at the hotel. d. The hotel is liable to Potter here.
B (Note that in the question I underlined "for maintaining inadequate fire exits". Read the question closely ... you will see that he died in his sleep from smoke inhalation - not from waking up and not being able to get out of the building due to inadequate fire exits. The hotel may have been negligent with regard to the fire exits, but, that negligence did not CAUSE Potter's death. Stated differently, the causation element fails. This question is testing whether you can recognize the causation element in negligence!! More specifically, it is testing you on actual (or but-for) causation - "but-for (or where it not for" the hotel's negligence with respect to the fire exits, would Potter have died?" YES! Therefore, actual causation is not established, the causation element fails in the plaintiff's case, and the hotel is not liable!!)
P sues D in negligence. At trial, it is determined that P's negligence was 40% responsible for P's injury, and D's negligence was 60% responsible. P's losses total $10,000. Under a pure comparative negligence system, P will recover: a. Nothing b. $4,000 c. $6,000 d. $10,000
C
Today, a "tort reformer" is someone who wants to: Help more injured plaintiffs recover more money. Make tort law more clear, coherent, and rational through uniform legislation. Deal with the "insurance crisis" by limiting plaintiffs' ability to recover and/or the amount they can receive. Get rid of negligence law and replace it with strict liability.
C
True statements can result in liability for: Defamation Putting someone in a false light in the public eye. Publicizing private facts about another person. None of the above
C
While Woody was an employee at Sam's Grocery Store, Woody learned, from Sam himself, how to recognize truly fresh produce when farmers brought their produce to the store. After he ceased being Sam's employee, Woody opened his own grocery store and made good use of what he had learned about recognizing fresh produce. Woody's store became known for its fine produce. Many of Sam's customers began purchasing produce and other grocery items at Woody's store rather than at Sam's. Sam sued Woody for the damages allegedly resulting from the loss of customers. Sam should: a. win the suit because Woody breached his duty of loyalty to Sam by going into competition with him. b. win the suit because in the course of competing with Sam, Woody used confidential information he had gained while he was Sam's employee. c. lose the suit because in competing with Sam, Woody was using only general knowledge (not specific, confidential and trade type secret information) acquired while he was Sam's employee. d. lose the suit because once a principal-agent relationship ceases, as it did here, the agent may use whatever information, confidential or otherwise, that he gained during the course of the relationship.
C
Why does the libel - slander distinction matter? a. Because actual malice is necessary for recovery in a slander case. b. Because truth is not a defense in a libel case. c. Because a plaintiff normally must prove special damages in an ordinary slander case. d. Because slander is conditionally privileged.
C
Potter is very worried about incurring liability for misrepresentations made by his sales agents. Thus, he instructs his agents to make no representations about his products that aren't contained in the standard form contracts those agents use for making sales. Also, the contracts conspicuously state that the seller makes no representations not contained on their face. Then Arthur, one of Potter's most trusted sales agents who has been employed by him for years, makes a forbidden representation to Treat in order to complete a sale (Treat had also bought product from Arthur several months earlier at Potter's store). The representation turns out to be false, and Treat sues Potter for failing to live up to what Arthur promised and represented (breach of contract). Which of the following is true? a. Treat can obtain no relief because of Potter's innocence and the exculpatory clause in the contract. b. Under these facts Treat can recover against Potter in tort (i.e., fraud) Potter cannot cancel the contract. c. Treat can only recover against Arthur, not Potter. d. None of the above.
C ( sales agents what he did, etc. I.e., sounds like an example of apparent authority (the principal - Potter taking steps/not taking steps such as employing Arthur, letting him wear a company name tag or shirt while he was on the job, etc., that would lead customers to reasonably believe that such agents like Arthur worked for him and had the authority to tell and make customers certain promises, etc.This question is testing you over the doctrine of apparent authority. See the agency law outline in your University Readers textbook (read closely the difference between actual authority, apparent authority, etc.). One can say/argue that Arthur had worked there for years (and therefore walked around the store, probably wore a company hat or shirt or nametag, etc.). Treat reasonably assumed that Arthur worked for Potter and had the authority to say was he did to him, Treat did not know that Potter had told his)
Which of the following is true about intentional infliction of emotional distress? Today, all courts require that the plaintiff's emotional distress have physical manifestations. The plaintiff must be emotionally susceptible in order to recover. The plaintiff's emotional distress must be severe. The defendant's conduct need not be outrageous; unreasonable behavior is enough for liability under this tort.
C ( "A" is not correct because not "all" courts require this. Again, read the question and answer choices closely!!)
Which of the following is least likely to create liability for defamation? Hint: in one of the following liability is impossible. A. Alleged fictional accounts. B. Statements regarding groups of people. C. Statements in a private letter written by the defendant to the plaintiff and shown to no one else. D. Statements made to the plaintiff by the defendant and heard by only one other person.
C ( See the defamation material in the outline in your University Readers textbook - the publication element fails/is not satisfied here.)
Ace, an amateur scientist, negligently mixed two chemicals he should not have mixed. As a result, a massive explosion occurred on his property. The explosion knocked down power lines, interfered with the normal flow of electrical current, and caused a freak surge of electricity at the home of Betty, who lived one mile from Ace's property. The surge of electricity started a substantial fire at Betty's home. The smoke from the fire at her home damaged the wallpaper in the home of Betty's next-door neighbor, Clyde. Clyde brings a negligence suit against Ace. Which of the following is the strongest argument for Ace to make in an attempt to avoid being held liable? a. That he did not intend to cause any harm to Clyde's property. b. That Clyde only suffered property damage rather than personal injury. c. That Clyde's damage/injury was too remote a consequence to be regarded as proximately caused by Ace's negligence. d. That the initial explosion described above was a superseding cause, which should relieve Ace from liability.
C ("D" is not the answer because the explosion was a natural result of his negligent act and it was NOT a new independent and outside event/force that came in and injured the plaintiff -- see/reread the negligence material (causation) in your University Readers textbook carefully!! This question is testing your ability to apply causation rules and principles.)
Marlene is a loan officer employed by Shark Loan Company. Her employer has given her authority to receive loan applications and to approve the making of loans. In view of these facts, Marlene: a. is liable to Shark for monetary loss it experiences as a result of a debtor's failure to repay a loan approved by her. b. may approve a loan of Shark funds to herself without seeking the approval of company officials, if she charges herself the standard rate of interest. c. must take reasonable care to investigate the credit standing of prospective borrowers before approving loans. d. need not turn over to her employer a gift given to her by a Shark customer in appreciation of the courtesy and helpfulness she showed in processing his loan.
C (Again, see the agency outline in your University Readers textbook at "Duties"; this question is testing you over the various duties that an agent (i.e., the employee) owes the principal (i.e., the employer).)
Dick Driver carelessly smashes his car into the rear end of another while driving on a busy street. Although Dick had no way of knowing this, the other car's trunk was filled with dynamite. The collision causes the dynamite to explode. The explosion miraculously misses Dick, but it causes the shattering of a window on the third floor of a nearby office building. The falling glass cuts Pete Pedestrian, who was walking on the street below. Dick will not be liable to Pete in negligence because: a. There is no breach of duty on these facts, because Dick could not have known that there was dynamite in the trunk. b. There is no actual or "but-for" causation between Dick's breach and Pete's injury. c. There is no proximate causation between Dick's breach and Pete's injury. d. The car owner's contributory negligence in leaving the dynamite in the trunk relieves Dick of any liability
C (Most reasonable people would most likely say that the reasonable foreseeability test of proximate causation is not satisfied here and that is why "C" is the right answer. (See the negligence material (causation) in the outline in your University Readers textbook.)
Pete Principal tells Alice Agent, his sales agent, that under no circumstances does she have authority to make any warranties covering goods she sells for Pete. No third party ever learns about Pete's limitation on Alice's authority. Which of the following is true in this case? a. Pete's statement makes it impossible for Alice to have actual authority to make warranties covering goods she sells on Pete's behalf. b. Pete's statement makes it impossible for Alice to have implied authority to make warranties covering goods she sells on Pete's behalf c. a and b both are true d. neither a nor b is true
C (Of course, Alice may still have the apparent authority to do this -- see Multiple Choice Question No. 15 below, and, Short Answer Question No. 6 below.)
Assault and battery both require: Physical contact between the defendant's body and the plaintiff's body. Awareness of the attempted physical contact at the time it occurs. Reasonable apprehension of a harmful or offensive physical contact. None of the above.
D
Paul E. Ester has filed for a false imprisonment suit against Doubleknit Duds, Inc., a clothing store. His suit arises out of an incident in which Doubleknit personnel detained him in order to determine whether or not he had shoplifted. The detention resulted in a conclusion that Ester had not in fact shoplifted. The state whose law controls Ester's case has enacted a typical shopkeepers' privilege statute of the sort described in the text and in your University Readers textbook. On these facts, Doubleknit: a) will win the case because the shopkeepers' statute gives merchants complete protection against liability for false imprisonment. b) will lose the case because the fact that Ester did not shoplift makes the shopkeepers' statute inapplicable. c) may win the case, but only if Doubleknit personnel gave Ester the Miranda ("you have the right to remain silent...") warning and offered to call an attorney for him. d) may lose the case, depending upon the length and manner of the detention, even if Doubleknit personnel had a reasonable basis for believing that Ester had shoplifted.
D
Phil Plaintiff is injured following the negligent behavior of Doris Defendant. His potential recoverable losses total $10,000. A jury determines that Doris's share of the negligence causing the injury was 40% and Phil was 60%. In a mixed comparative negligence state, Phil will recover: a. $10,000 b. $6,000 c. $4,000 d. Nothing
D
To which of the following classes of cases does strict liability not apply? a. Ultrahazardous or abnormally dangerous activities b. Employee injuries covered by workers' compensation. c. Injuries caused by the sale of defective and unreasonably dangerous products. d. Strict liability applies in all of the above cases.
D
Under a "mixed" system of comparative negligence: a. The defendant has a complete defense even if the plaintiff departed only slightly from what a reasonably self-protective person would have done under the circumstances. b. The plaintiff will recover all $10,000 where his actual losses total $10,000 and the defendant is 60% at fault. c. The plaintiff will recover $4,000 where his actual losses total $10,000 and the defendant is 40% at fault. d. The plaintiff will recover nothing where his actual losses total $10,000 and the defendant is 40% at fault.
D
Which of the following is least likely to create liability for the form of invasion of privacy known as/called "intrusion on personal solitude or seclusion"? Using binoculars to look from your apartment into the bedroom of a neighboring apartment to watch the occupant undress, because you are not intruding on the other person's property. Tapping someone's telephone, because this is nonphysical intrusion. Examining someone's bank account, because here there's no intrusion on the plaintiff himself. Examining public records (e.g., documents in a court file) concerning a person, because here there's no reasonable expectation of privacy.
D
Which of the following is slander rather than libel? a) A defamatory statue. b) A defamatory TV broadcast. c. A defamatory magazine article. d. All of the above are libel rather than slander.
D
Fred Sweet runs one of those Arthur Murray-style dancing classes for middle- aged and elderly people. Some of Fred's customers lack physical coordination, and injuries from kicks, falls, etc. are more common than you'd think. Fred naturally fears that injured customers will sue him in negligence. Thus, he makes each customer sign a written contract containing a clause (called an exculpatory clause) relieving Fred of all liability for injuries suffered during his dancing classes. However, fearful that he will lose business if potential customers become aware of his strategy, Fred states the clause in fine print and doesn't point it out to them. An injured customer sues Fred in negligence. Fred wants to defend on the basis of the clause in the contract. Which of the following is the biggest weakness in Fred's position? a. That Fred tried to use an exculpatory clause at all, because such clauses are invalid on public policy grounds. b. That Fred tried to use an exculpatory clause to relieve himself of negligence liability. c. That Fred has superior bargaining power, which makes customer's acceptance of the exculpatory clause involuntary. d. That Fred used a fine-print exculpatory clause, which means that the customer lacked knowledge of the clause's existence and therefore should not be bound by it.
D (-- and therefore, his customers did not "voluntarily and knowingly" assume this risk. See the negligence material (assumption of risk defense) in the outline of your University Readers textbook - for the assumption of risk defense to work, the plaintiff must have "knowingly" and "voluntarily" assumed a "known and specific risk"!!)
In order for an agent to legally bind a principal on a contract (not for a tort the agent committed) the agent must: a. Be an employee acting within the scope of his employment. b. Disclose the identity of his principal c. Use a written contract and signs the principal's name to it d. Have actual or apparent authority
D (See the agency outline in your University Readers textbook. "A" cannot be the answer because it relates to torts, not contract liability - i.e., read the outline in your University Readers textbook carefully and make sure you can distinguish the difference between the rules that apply to/involving a contract situation versus a tort!!)
Which of the following people is most likely to have committed a breach of duty and to be liable for negligence? a. A two year-old child who starts a forest fire after playing with matches in a dry area. b. A person without a sense of smell who causes an explosion by lighting a cigarette in a room filled with flammable gas that has an odor. c. An intellectually disabled person who started a forest fire by playing with matches in a dry area, and who lacked the mental ability to appreciate the risk involved in doing so. d. A person who causes an auto accident after suffering a blackout while driving a car, and that person had had periodic blackouts before.
D (See the negligence materials (duty) material in the outline in your University Readers textbook. "D" is the right answer because presumably if such a person had had blackouts before, wouldn't it be reasonably foreseeable that another one would/could occur while driving, and that person therefore had a "legal duty" under negligence law to not drive??)
Which of the following parties is least likely to be an employee? The president of a corporation An NBA basketball player. An accountant who works for a large accounting firm. A real estate broker who helps sell your house.
D (This question is asking you whether you can identify and distinguish the difference between an independent contractor vs. an employee.)
Davis throws a dagger at Smith, intending to kill Smith. However, Davis misses Smith. Specifically, the dagger whizzes by Smith's head, missing her by about an inch. Then, the dagger strikes the hat Potter is wearing on his head. The dagger does not make contact with Potter's body - only his hat. Of course, Davis did not intend to make contact with Potter. Unharmed but finding the whole thing offensive, Potter sues Davis for battery. Which of the following is most true? Davis is not liable because he did not intend to make contact with Potter. Davis is not liable because the knife did not make contact with Potter's body Davis is not liable because Potter did not suffer any physical harm. Davis is liable to Potter for battery.
D (Via and because of the doctrine of transferred intent, where you intend to hit one person, but miss and hit another, Potter can sue Davis for battery. Also, remember that the hat Potter is wearing is considered to be a "part" of Potter and that's enough to constitute a battery! )
Courts would classify a defamatory radio broadcast as slander rather than libel, because it involves spoken words. a. True b. False
False
This model and theory emphasizes that a person's act is more important than the outcome or consequence of their act (which utilitarianism focuses on).
Kantianism
rejects the notion of an absolute right or wrong in a given situation. Everything is left for the individual to judge and decide. Whatever the individual decides is considered acceptable. Those who disagree or object are merely "judging" and being self-righteous.
Moral Relativism
While driving his new four-wheel drive vehicle at a high speed through a muddy field at the county fair, Joe runs into Susan. Joe wasn't trying to hit anyone and wasn't substantially certain that this would happen either. Rather, he was just having a good time. Of course, Joe knew and had to know that this behavior carried with it a high risk of harm to someone, Joe's behavior is best described as reckless. a. True b. False
True
t/f: One of the factors courts/juries consider when determining how a reasonable person would have behaved is the social utility of the defendants conduct.
True
There can be liability for defamation if the defamatory statement is made to only one person other than the plaintiff. a. True b. False
True (But see the Lewis Case in your University Readers textbook for an exception to this general rule - i.e., the self-publication rule/doctrine; make sure you understand and can apply that rule/doctrine!!)
In intentional infliction of emotional distress cases, some courts require that the plaintiff's emotional distress manifest itself in the form of physical symptoms. a. True b. False
True (This is right out of your University Readers textbook. See discussion in that outline on the tort of intentional infliction of emotional distress.)
t/f: Contributory negligence is not a defense in strict liability cases.
True. (Comparative fault/negligence is, but not contributory negligence per se (see the outline in your University Readers textbook on strict liability (defenses)). )
The tort of intentional infliction of emotional distress requires "outrageous" behavior of some sort on the defendant's part. a. True b. False
True. (See the material on the tort of intentional infliction of emotional distress in the outline in your University Readers textbook.)
Sounds that reverberate across the plaintiff's land can constitute a trespass. a. True b. False
True. (Watch out re: your loud parties!)
The moral worth of an action is determined only by its resulting outcome or consequences. If the pros or upsides of the outcome or consequence outweigh the negative, then the act or action is justified.
Utalitarianism
focuses on what the individual should do for his/her own personal inward behavior, peace of mind, development, happiness (i.e., character) rather than the individual focusing on or worrying about the customs, laws, expectations, or popular opinion of his/her society to determine what is right or wrong. One challenge/problem of this model is that there is disagreement on what is "ethical" and "moral" for purposes of one's character and development.
Virtue Ethics
t/f: Ratification by a principal of an agent's unauthorized entering into a contract must be express (in words).
f ( No, it could be implied (by conduct) as well, or even express via in a writing.)
t/f: One aspect of the agent's duty of loyalty is that an agent is forbidden from ever competing with his principal, even after the agency has ended.
f ("Ever" ?? No, that is not true- see the agency outline in your University Readers textbook at "Duties".)
t/f: A writing is necessary for the creation of an agency relationship.
f (It can be implied (created by conduct), exist under the apparent authority doctrine, etc.)
t/f: Under a pure system of comparative negligence, the defendant has no defense whatsoever when the plaintiff's percentage share of the negligence causing the injury is less than fifty percent.
false
Which of the following personal traits or conditions will not change the normal reasonable person standard to which defendants are subject? Blindness Deafness Voluntary intoxication Childhood
c (See the negligence material (duty) in the outline in your University Readers textbook. With respect to "C", under the law in civil negligence cases voluntary intoxication is not the same thing as a biological defect/condition. With respect to "D", obviously, children cannot/should not be held to a reasonable adult person standard so that is why D is not the correct answer.)
t/f: The "tort reform" movement is aimed at eliminating all the loopholes through which tort defendants escape liability to deserving plaintiffs.
false (It's aimed at making it more difficult for plaintiffs to recover against defendants in product liability actions.)
The Pittenger Corporation, which has no expertise in the demolition business, hires the Ace Demolition Company to demolish a vacant office building owned by Pittenger. Ace has an outstanding reputation for safety. The deal, of course, is that Ace has full control over how the demolition is to be performed. Unfortunately for all concerned, Ace picks this occasion to try out a new method of demolition involving the use of explosives. However, even though Pittenger had informed Ace about the matter, Ace failed to notice that the building was filled with flammable materials. Thus, when the explosives were detonated, the building exploded into flame, utterly destroying a nearby building and killing and injuring lots of people. Pittenger is sued in tort for this destruction and death. Which of the following is true? a. Pittenger is not liable because Ace is an independent contractor. b. Pittenger is not liable because it was in no way at fault producing the explosion c.Pittenger is liable for Ace's negligence d. a and b both are true
c (this is an example of a "highly dangerous activity" and principals remain liable for any damage caused by their independent contractors who engage in such activities (see the agency outline in your University Readers textbook at "Independent Contractor" section).)
t/f: In order for a principal to be directly liable for an agent's negligence, the agent must have acted within the scope of her employment.
false (No, the scope of employment issue and analysis relates to respondeat superior, not direct liability. Make sure you know the difference between respondeat superior and direct liability!! I.e., read the outline in your University Readers textbook on this material carefully!!)
t/f: D builds a fire on a windy day. The wind is blowing before and during the time when D builds the fire. The wind is an intervening force or intervening cause.
false (Note: an intervening or superceding cause is a new/different force or cause that appears after the defendant's initial negligent act. Here, the wind was already blowing in existence at the time of the defendant's negligent act. You gotta read the question, and, the corresponding material in your University Readers textbook (negligence - the causation section/element) very carefully!!)
t/f: In a strict liability case, the plaintiff still must prove a breach of duty on the defendant's part.
false (This is NOT an element of strict liability, only negligence. See the strict liability material in the outline in your University Readers textbook. Don't confuse/commingle these two torts!!)
t/f: The aim of the tort reform movement is to make it easier for deserving tort plaintiffs to recover.
false (It's really the exact opposite - aimed at making it more difficult for such plaintiffs to recover in such civil tort cases)
t/f: Although there is no sharp line between employee status and independent contractor status, an agent is generally classified as an employee if the principal has the right to control the physical details of the agent's work.
t
t/f: Normally, an agent hired to manage a business has the implied authority to hire employees for that business.
t
t/f: One aspect of the agent's duty to account is that agents normally must give to the principal such things as gifts, bribes, and kickbacks that they receive from third parties with whom they deal.
t
t/f: The effect of a ratification is to make the principal liable for the agent's unauthorized action, just as if the agent had possessed authority at the time he took the action.
t
t/f: Apparent authority is based on what the principal communicates to a third party.
t (See the discussion in the agency outline in your University Readers textbook on actual authority and apparent authority, and, MAKE SURE YOU KNOW, UNDERSTAND, AND CAN APPLY THE DIFFERENCE BETWEEN THE TWO!!)
t/f: A principal says to an agent: "You don't have apparent authority to do x." Despite this statement, the agent may still have apparent authority to do x.
t (This is true because apparent authority has nothing to do with what the principal says to the agent; it deals with what the principal says/does not say to lead a 3rd person to form a reasonable belief that an agency relationship has been created and that an agent has the authority to do something on behalf of the principal!!)
t/f: In many cases, a blind person will be held to a different standard of reasonable care than a person who can see.
true
t/f: Negligence defendants are not liable for the consequences of an unforeseeable, intervening (or superceding) cause.
true
t/f: Proximate causation (which is based on forseeability) presupposes the existence of actual (or but-for causation); and as a practical matter, you can't have the former without the latter.
true
