Tort Law Final

T/F A public nuisance can affect only a single person and be actionable by the prosecutor.

False - A public nuisance is a land use that injures the public at large rather than just a single individual. A public nuisance unreasonably interferes with the public's enjoyment of legal rights common to the public.

T/F In wrongful life actions, it is the parents who are seeking damages.

False - A wrongful life action is typically an action by or on behalf of an unwanted child who is impaired.

T/F Assumption of risk is not a defense to strict products liability.

False - Assumption of risk is another defense to products liability.

T/F If the government charges a fee for a service, the activity is usually considered governmental.

False - Courts often decide based upon whether a fee is assessed to users of these services. If a fee is charged, then the activity is considered proprietary. If not, then it is governmental. This may be called the fee standard.

T/F Governments are immune from tort liability for proprietary actions.

False - Governmental bodies also perform certain business-like activities (usually associated with the private sector). These are defined as proprietary actions and do not carry immunity from tort liability.

T/F Tort defenses are not applicable in wrongful death actions.

False - In wrongful death actions, the tortfeasor may use any defense applicable to the specific tort that produced the victim's injury.

T/F All public officials are immune from torts.

False - Legislators and judges enjoy an absolute immunity from tort liability for acts in their official governmental capacities

T/F Public officials are immune from all intentional torts.

False - Legislators and judges enjoy an absolute immunity from tort liability for acts in their official governmental capacities

T/F Reasonable care is an important factor in wild animal injury cases.

False - Owners are strictly liable for the injuries their wildlife inflict. It does not matter that the owner exercised every precaution to safeguard others from being hurt by the wild animals. If the beast attacks and hurts someone, the owner must compensate the victim for the injuries.

T/F Citizens may not make warrantless arrests.

False - Police officers, and sometimes even ordinary citizens, engage in warrantless arrests.

T/F In strict products liability cases, the ultimate user must be the original purchaser of the defective product.

False - Product Distribution Chain: Product Manufacturer ↓Wholesale Seller↓ Retail Seller ↓ Purchaser ↓ ultimate user (If not the purchaser)

T/F Proximate cause, as applied to absolute liability cases, is substantially different from the term as used in negligence cases.

False - Proximate cause in absolute liability cases is defined similarly to proximate cause in negligence cases

Wrongful birth actions often involve

c. pregnancy.

What distinguishes strict liability from negligence?

a. Fault is irrelevant to strict liability but is important to negligence. Fault Is Irrelevant: Absolute (strict) liability holds the tortfeasor responsible for his or her behavior regardless of fault. Proximate cause in absolute liability cases is defined similarly to proximate cause in negligence cases

Generally, to locate a corporation, a paralegal should first contact which state agency?

a. Secretary of State - Secretaries of State offices. To locate a corporation, a paralegal should first contact the state agency that is responsible for keeping business organizational records. This is usually the secretary of state's corporate division for each state.

Rightful repossession is most often a defense to which of the following intentional torts? a. Invasion of privacy b. Trespass to land c. Defamation d. All of these choices.

b. Trespass to land - This is the defense of rightful repossession. The defense is generally applied to allegations of trespass to land, assault, battery, and sometimes conversion and trespass to chattel

Domitae naturae refers to

b. domestic animals.

Workers' compensation

c. bars suits against the employer. - Workers' compensation only bars suits against the employer, not outside third parties.

Some jurisdictions include all of the following elements in strict products liability except a. foreseeable plaintiffs theory. b. seller or buyer must be in business of selling product. c. intent. d. seller's or manufacturer's responsibility for product condition.

c. intent - There are five elements of products liability, as defined by most state courts or statutes: 1.The defect must render the product unreasonably dangerous to use. 2.The seller or manufacturer must be in the business of selling prod-ucts such as the flawed one(s). 3.The product cannot have been substantially changed between the time it left the seller or manufacturer's hands and the time it reached the ultimate user. 4.The defect must have proximately caused the ultimate user's injuries. 5.The ultimate user must have used the product properly, that is, in the way that the product was designed to be used. In some jurisdictions, several additional elements are required: 6.The ultimate user must have been foreseeable (foreseeable plaintiffs theory). 7.The seller or manufacturer must have been responsible for the condition in which the product was maintained. 8.In a few states, a sale of the product must have occurred. This could be a sale between the manufacturer and a wholesaler, or a wholesaler to a retailer, or a retailer to a customer. Basically, some-one at some point had to buy the defective item.

"The king can do no wrong" refers to

c. sovereign immunity.

Efforts at tort reform are being spearheaded by

c. the defense bar. - Tort reform involves the effort to reduce the amount and kind of tort litigation and excessive damage awards. This effort is primarily spearheaded by the defense bar.

Which section of the Restatement (Second) of Torts deals with strict products liability?

c. § 402A - A revision of section 402A of the Restatement (Second) of Torts that focuses on products liability. Not all jurisdictions follow this edition.

Loss of consortium is defined as a. lost wages. b. lost use of body parts. c. lost love and companionship. d. All of these choices.

d. All of these choices. Many statutes define consortium as both economic and intangible benefits lost to a victim's surviving family because of the victim's death. The intangible elements could include lost love, companionship, and even the survivors' mental anguish upon losing a loved one.

T/F Privilege is sometimes considered a broad category encompassing all intentional tort defenses.

True - Privilege is most commonly a defense to trespass to land, trespass to chattel, conversion, assault, battery, and false imprisonment, although it may be applied against other intentional torts as well. . .Privilege is sometimes considered a broad cate-gory embracing all the other defenses discussed in this chapter.

T/F Self-defense is the exercise of reasonable force to repel an attack upon one's person or to avoid confinement.

True - Self-defense is the exercise of reasonable force to repel an attack upon one's person or to avoid confinement.

T/F Bills from housekeepers and taxi drivers may be included as part of a plaintiff's expenses related to a personal injury claim.

True - The client should provide documentation of all expenses paid in relation to the injury and medical treatment. This includes receipts for . . . . Bills from housekeeper, cook, visiting nurses, medical transport, or other assistance needed during recuperation

T/F Wrongful birth cases sometimes involve birth defects.

True - The plaintiffs (parents) then sue the physician for the unwanted birth of a child born with birth defects or other congenital problems.

T/F An economist should be hired by the trial team to testify regarding a plaintiff's future reduced earning capacity.

True - The projected earnings potential is usually adjusted for the victim's projected living expenses, had he or she survived. An economist is usually hired as an expert witness to introduce this evidence at trial.

T/F For the plaintiff to recover under strict products liability, the defective product must be unreasonably dangerous.

True - There are five elements of products liability, as defined by most state courts or statutes: 1. The defect must render the product unreasonably dangerous to use.

T/F Rightful repossession provides a defense to trespass to land.

True - This is the defense of rightful repossession. The defense is generally applied to allegations of trespass to land, assault, battery, and sometimes conversion and trespass to chattel.

T/F Abnormally dangerous activities are those that are inappropriately performed in the place in which the victim was harmed.

True - To be ultrahazardous, the activity or substance must have been inappropriately performed or used in the place in which the victim was harmed. Although some courts split hairs distinguish-ing ultrahazardous from abnormally dangerous, the expressions are essentially interchangeable.

T/F Videotape and computer animation are routinely used in accident reconstruction and for settlement brochures.

True - Videotape and computer animation are routinely used in accident reconstruction, "day-in-the-life" documentaries, and settlement brochures.

T/F Governmental functions often include public provision of police, fire, and ambulance services.

True - When governmental bodies perform certain public protection activities, such as providing fire, police, or ambulance services, they are considered to be undertaking governmental functions.

T/F Under public nuisance, the public's common legal rights are affected.

True - With public nuisances, the tortfeasor's obnoxious land use interferes with the public's common legal rights, such as the right to peaceably assemble in public places, the right to use public streets and sidewalks without being subjected to offensive activities, or the right to safe and healthy conditions in one's neighborhood.

T/F Workers' compensation is a form of insurance for workers who are injured on the job or who become ill as a result of their job.

True - Workers' compensation is insurance that provides cash benefits and/or medical care for workers who are injured on the job or who become ill or die as a result of their job.

T/F Under the common usage principle, an abnormally dangerous activity is one that is not commonly undertaken in everyday life.

True - common usage (use) principle | Doctrine in strict liability cases that defines abnormally dangerous activities and substances as those not commonly undertaken or used in everyday life.

T/F In strict products liability, the product must have a defect of some sort.

True - product(s) liability | The responsibility of manufacturers (and sometimes sellers) of goods to pay for harm to purchasers (and sometimes other users and even bystanders) caused by a defective product.

T/F Wrongful death actions are often controlled by statute.

True - wrongful death statute | Statute that allows a lawsuit to be brought by the dependents of a dead person against the person who caused the death. Damages will be given to compensate the dependents for their loss, if the killing was negligent or willful

When a land user arrives after an alleged nuisance activity has existed and been previously operating, the defendant may use the ______ defense.

b. "coming to the nuisance" - The coming to the nuisance defense involves the plaintiff who owns or uses land at a location in which the alleged nuisance activity was already occurring.

Which of the following may be used as a defense to false imprisonment?

b. Consent

In which area of law does products liability have its roots?

b. Contract law/warranties

Which of the following tests is sometimes applied to distinguish governmental from proprietary activities? a. Reasonable person standard b. Fee standard c. Pecuniary standard d. None of these choices.

b. Fee standard - fee standard | A test courts use in applying the governmental/proprietary distinction. If a governmental agency assesses a fee for an activity, the activity is considered proprietary; if not, it is considered governmental.

Which of the following is an example of a statute of limitations? a. Filing a lawsuit within one month of the date of injury b. Filing a motion to extend the time within which to file a responsive pleading c. Filing an amended pleading d. All of these choices.

b. Filing a motion to extend the time within which to file a responsive pleading

There may be special notice requirements when suing which of the following types of defendants? a. Lawyers b. Governmental agencies c. Stores d. Bankers

b. Governmental agencies - Paralegals should carefully follow statutes or procedural rules for special no-tice requirements when suing governmental agencies

Which of the following discovery tools is used to obtain specific information (e.g., precise name of defendant) or to resolve a few key issues? a. Notice to admit b. Interrogatory c. Deposition d. Request for documents

b. Interrogatory

Which public officials are usually given absolute immunity from tort liability while performing their public duties?

b. Judges and legislators - Legislators and judges enjoy an absolute immunity from tort liability for acts in their official governmental capacities

Privilege is best defined by which of the following? a. Right the tortfeasor has to commit torts b. Legal justification to engage in otherwise tortious conduct to achieve a socially compelling goal c. Authority of governmental officials to commit torts against the public for the common good d. Legal justification of members of the public to engage in torts to protect themselves from the government

b. Legal justification to engage in otherwise tortious conduct to achieve a socially compelling goal - As an intentional torts defense, privilege is a legal justification to engage in otherwise tortious conduct in order to accomplish a compelling social goal.

Which of the following is not an example of strict liability? a. While exterminating insects at a diner, Webster sprayed carcinogenic pesticides onto the restaurant's food preparation surfaces. b. Mr. Major's prize pig, Fred, takes a liking to Kim's authentic first-century miniature Roman statue of Caesar, breaking off the stone figure at the base. c. Andi's wild horse, which she purchased from the federal Bureau of Land Management, stomps on Mason's foot. d. Patrick uses dynamite to remove tree trunks on his farm, causing windows in neighbor Christian's house to shatter.

b. Mr. Major's prize pig, Fred, takes a liking to Kim's authentic first-century miniature Roman statue of Caesar, breaking off the stone figure at the base. Owners are absolutely liable for injuries their wild animals inflict. However, owners are strictly liable for injuries caused by their domestic animals only if these animals exhibited vicious propensities.

What is one of the public policy justifications for absolute liability?

b. People engaged in certain dangerous activities should bear the risk of liability. - Under strict liability, society has decided that the person engaged in certain activities should bear the risk of liability to individuals innocently injured as a consequence of the dangerous or defective item or action.

Which of the following statements is NOT true regarding strict products liability? a. Privity of contract is not required in products liability. b. Seller or manufacturer's negligence is relevant to strict liability. c. The seller or manufacturer must be in the business of selling products such as the flawed one(s). d. None of these choices.

b. Seller or manufacturer's negligence is relevant to strict liability. - Remember that the seller or manufacturer's negligence is irrelevant to strict liability.

Dun & Bradstreet is an example of a

b. business directory. - Business directories list corporations and other business organizations according to name, geographic location, product or service, brand name, advertising, and other subject headings. Most public or university libraries have these reference texts on reserve. Various private services, such as Dun & Bradstreet, Inc. also provide this information, in print or online; sometimes a fee is involved.

Laws that provide for the disclosure of information from governmental entities are

b. freedom of information laws. - Freedom of information laws provide for governmental disclosure of most contracts.

Merchantable means

b. goods that are fit for their usual or customary purpose. merchantable | Goods that are fit for their usual or customary purpose.

When a report contains information from persons other than the person who wrote the report, the document may not be admissible at the time of trial because it contains ______ evidence. a. felonious b. hearsay c. vindictive d. investigative

b. hearsay - hearsay | A statement about what someone else said (or wrote or otherwise communicated)

In nuisance cases,

b. injunctions are most often granted. - In nuisance law, the most common equitable remedies include (1) abatement and (2) injunction, although now money damages are occasionally permitted in nuisance cases.

In negligence cases, a young child's age

b. is only one factor considered by most courts regarding the child's negligence. - Most courts do not grant absolute negligence immunity to young children. In-stead, the child tortfeasor's age is merely one factor to be considered in determining the standard of reasonable care that the reasonable child of tender years would have used in a particular case

A mass tort occurs when

b. many people are injured as the result of a single tortious act. - A mass tort occurs when many people are injured as a result of a single-tortious act.

An unreasonable or unlawful use of one's real property that injures another person or interferes with another person's use of his or her land is called

b. nuisance. - A nuisance is an unreasonable or unlawful use of one's real property that injures another person or interferes with another person's use of his or her real property.

At common law, absolute liability can apply to domestic animals under which rule?

c. Vicious propensity - vicious propensity rule | Doctrine in absolute liability cases involving domestic animals. Normally owners are not strictly liable for injuries caused by their domestic animals. However, if the animals display vicious propensities and hurt someone or someone's property, then the owner is absolutely liable

Hot pursuit, in the defense of rightful repossession, means

c. a rapid chase as soon as possible after an owner discovers that his or her chattel has been taken. - Hot (fresh) pursuit, in this context, may be described as a rapid chase as soon as possible after the owner has discovered that his or her chattel is missing.

The common usage principle states that

c. abnormally dangerous activities are those that are not commonly undertaken in everyday life. - Abnormally dangerous activities and sub-stances are those not commonly undertaken or used in everyday life. This is sometimes called the common usage (use) principle.

All of the following are remedies for nuisance except a. money damages. b. abatement. c. liquidated damages. d. TROs.

c. liquidated damages. - In nuisance law, the most common equitable remedies include (1) abatement and (2) injunction, although now money damages are occasionally permitted in nuisance cases. Courts enforce abatement through injunctive relief. Injunctions are court orders to defendants to cease and desist from engaging in nuisance activities. There are two types of injunctions: (1) temporary injunctions, including temporary restraining orders (TROs); and (2) permanent injunctions.

Activities that constitute both a public and private nuisance are called

c. mixed nuisances. - Mixed Nuisance Mixed nuisances include public and private nuisances

Under private nuisance, unreasonable use that substantially interferes with neighboring land uses is defined in terms of

c. offensiveness. - Whether the tortfeasor's use of real estate is unreasonable and substantially interferes with another's land use is usually defined in terms of offensiveness.

The following are all parties to a products liability lawsuit except a. sellers. b. manufacturers. c. original purchasers. d. ultimate users.

c. original purchasers. - Three classes of parties are involved in products liability cases: the product manufacturer, the seller, and the ultimate user.

The family immunity doctrine covers

c. parents and children. - It is important to note that the family immunity doctrine only covers parent and child, and not suits between brothers and sisters or other relatives.

In which of the following cases could strict liability apply? a. Injuries caused by wild animals b. Injuries caused by explosives c. Injuries caused by toxic wastes d. All of these choices.

d. All of these choices.

Which of the following are used as research tools during discovery? a. Telephone b. Internet c. Physical examination d. All of these choices.

d. All of these choices.

Which of the following statements is accurate? a. Ordinary citizens have no authority to make arrests. b. Police officers who make warrantless arrests are always liable for the intentional torts they commit. c. Citizens who make warrantless arrests are always liable for the intentional torts they commit. d. None of these choices.

d. None of these choices. - Police officers, and sometimes even ordinary citizens, engage in warrantless arrests.

Which of the following is not an element required for informed consent? a. The victim's full understanding of the consequences of the tortfeasor's actions b. Volenti non fit injuria c. The victim's voluntary acceptance of the tortfeasor's conduct d. None of these choices.

d. None of these choices. - The consent defense contains the following elements (1) voluntary acceptance of an intentionally tortious act (2) with full knowledge or understanding of the consequences. Actually, consent is not a legal defense at all. As shown in the previous two chapters, it is a deliberately missing element of intentional torts. If consent existed, then the intentional tort could not have occurred. The ancient common law applied the Latin maxim volenti non fit injuria, which translates as, "No wrong may occur to one who is willing." As a practical matter, courts over the centuries have treated consent as a defense to intentional torts.

Which of the following is NOT one of the factors considered by the tort trial team as it determines the scope of the investigation? a. Severity of the injury involved b. Existence of insurance c. Client's ability to pay d. None of these choices.

d. None of these choices. - The tort trial team will want to adapt the investigation to fit the case. Investigations can be quite simple or highly complex and technical. Factors such as the severity of the injury involved and resources available to the plaintiff or defendant often control the scope of the investigation. "Resources available" are such factors as the client's ability to pay, the attorney's ability to advance the costs of investigation, the financial condition of prospective parties, and the existence of insurance, all of which must be considered

All of the following can make a product unreasonably defective except a. faulty product design. b. improper product maintenance. c. manufacturer's or seller's failure to warn. d. None of these choices.

d. None of these choices. - There are four types of unreasonably dangerous defects: (1) fault in product design, (2) error in product manufacture or assembly, (3) improper product maintenance, and (4) manufacturer/seller's failure to warn.

Which of the following is not one of the warranties involved under strict products liability? a. Express warranty b. Implied warranty of merchantability c. Implied warranty of fitness for a particular purpose d. None of these choices.

d. None of these choices. - Three different kinds of possible warranties are involved under strict products liability. To recover under these warranties, a plaintiff need not show that a defendant was negligent or acted intentionally to cause harm. The plaintiff must show a breach of one of the following warranties: 1.Express warranty, 2.Implied warranty of merchantability, or 3.Implied warranty of fitness for a particular purpose.

The duty of reasonable care is important to which of the following tort cases? a. Wild animal-owner liability cases b. Abnormally dangerous activity cases c. Vicious domestic animal cases d. None of these choices.

d. None of these choices. - strict liability

Self-defense includes all of the following elements except a. use of reasonable force. b. countering an attacking or offensive force. c. force necessary to prevent bodily injury, offensive contact, or confinement. d. a third party threatened by an attacking force.

d. a third party threatened by an attacking force.

Tort case investigations may be conducted by a. paralegals b. investigators c. attorneys d. all of the above

d. all of the above - Each attorney or law firm has its own specialized methods for conducting investigations. Some have in-house investigators; others hire outside investigators or investigation services. Some attorneys hire specialists for specific aspects of a tort case, whereas some rely on law clerks, paralegals, or other staff members to per-form certain portions of investigations.

In some jurisdictions, to do business under a fictitious name, the following certificate must be filed:

d. d/b/a. - Many jurisdictions require that partnerships and individuals doing business under a trade name or assumed, fictitious name file a doing business as (d/b/a) certificate or affidavit with an appropriate governmental agency.

Workers' compensation

d. provides cash benefits and medical care for workers injured on the job. - Workers' compensation is insurance that provides cash benefits and/or medical care for workers who are injured on the job or who become ill or die as a result of their job.

If it were reasonably foreseeable that the injured person would use the defective product, this individual is called

d. the ultimate user.

T/F There must be a low risk of injury in ultrahazardous activity cases.

False - The Restatement (Second) of Torts § 520 declares that persons engaged in abnormally dangerous activities shall be strictly liable for injuries caused by their actions. The Restatement lists several criteria for absolute liability: 1.The abnormally dangerous activity created a high risk of substantial injury to an individual or his or her property.

T/F To obtain information about the name and address of a property owner, a commissioner of deeds should be consulted.

False - The tax assessor's office can provide property-ownership information by name or address of the property. In some states, some of the information will be protected by privacy protection acts limiting the amount of information that can be obtained or distributed to others.

T/F The parties in strict products liability cases include the manufacturer, retailer, wholesaler, and ultimate user.

False - Three classes of parties are involved in products liability cases: the product manufacturer, the seller, and the ultimate user.

T/F Mandamus is a type of monetary damages for nuisance actions.

False - mandamus| (Latin) "We command." A writ of mandamus is a court order that directs a public official or government department to do something.

T/F Under the pecuniary benefit test, governments provide services for profit but are immune from tort liability.

False - pecuniary benefit test | When the government provides services for money, then the activities are considered proprietary, and there is no immunity from tort liability.

T/F "Coming to the nuisance" is a defense to public nuisance actions.

False - private - coming to the nuisance defense | A defense to private nuisance lawsuits that may be used successfully when a plaintiff owns or uses land at a location in which the alleged nuisance activity was previously occurring. The plaintiff is said to have "come to the nuisance" and thus cannot recover against the defendant.

T/F The vicious propensity rule applies to ferae naturae.

False - vicious propensity rule | Doctrine in absolute liability cases involving domestic animals. Ferae naturae | (Latin) "Of wild nature." Naturally wild animals.

T/F Defense of property must be authorized by a statute or ordinance to be legally justified.

False

T/F Government files containing vital statistics, marriage licenses, civil suit records, probate records, and motor vehicle reports are all private records that cannot be used to obtain information for a lawsuit.

False

T/F Most courts grant absolute immunity to children of tender years for their negligent actions.

False - Most courts do not grant absolute negligence immunity to young children. In-stead, the child tortfeasor's age is merely one factor to be considered in determining the standard of reasonable care that the reasonable child of tender years would have used in a particular case

T/F Under strict products liability, the manufacturer or seller need not be in the business of selling products such as the defective item that caused the injury.

False - Section 402A of the Restatement (Second) of Torts, and most common law and statutory versions of products liability, insist that the manufacturer or seller be engaged in the business of selling products such as the defective item(s) that injured the ultimate user.

T/F Under strict products liability, there must be privity of contract for the plaintiff to recover.

False - Subsection (2)(a) of § 402A of the Restatement (Second)of Torts indicates that the seller is liable regardless of the degree of care used to safeguard the public from injury by the defective product. Subsection (2)(b) states that privity of contract is unnecessary for strict liability to apply.

T/F Under strict products liability, in order for the plaintiff to recover, the product cannot be substantially changed from the time it left the manufacturer or seller until it reached the ultimate user.

There are five elements of products liability, as defined by most state courts or statutes: 1.The defect must render the product unreasonably dangerous to use. 2.The seller or manufacturer must be in the business of selling products such as the flawed one(s). 3.The product cannot have been substantially changed between the time it left the seller or manufacturer's hands and the time it reached the ultimate user. 4.The defect must have proximately caused the ultimate user's injuries. 5.The ultimate user must have used the product properly, that is, in the way that the product was designed to be used.

T/F Statutes of limitations can provide absolute tort immunity for a defendant if a plaintiff does not file his or her lawsuit within a certain time period.

True

T/F Most states still follow the common-law rule that children of tender years are immune from intentional tort liability.

True - Most states still follow the ancient common law rule that children of tender years are incapable of committing intentional torts; thus, they are immune from intentional tort liability.

T/F Necessity allows a tortfeasor to commit an intentional tort to prevent more serious injury from an external force.

True - Necessity contains four elements: (1) committing an intentional tort (2) to avert more serious injury (3) caused by a force other than the tortfeasor (4) and the tortfeasor's actions were reasonably necessary to avoid the greater harm.

T/F The risks of an abnormally dangerous activity must outweigh the benefits the activity brings to the community in order for absolute liability to apply.

True The Restatement (Second) of Torts § 520 declares that persons engaged in abnormally dangerous activities shall be strictly liable for injuries caused by their actions. The Restatement lists several criteria for absolute liability: 1.The abnormally dangerous activity created a high risk of substantial injury to an individual or his or her property. 2.This risk could not be removed through the use of reasonable care. 3.The activity is not commonly undertaken (the common usage principle). 4.The activity was inappropriately undertaken in the place in which the victim was harmed. 5.The hazards that the activity creates outweigh the benefits that the activity brings to the community.

T/F In private nuisance law, unreasonable uses are defined by the reasonable person standard, which is usually a community standard.

True - A private nuisance is an unreasonable and substantial interference with another person's use and enjoyment of his or her land. Whether a nuisance activity is unreasonable and substantial depends upon its degree of offensiveness. The reasonable person standard is applied to test offensiveness and is based upon the community standard for persons living in the vicinity of the nuisance activity.

T/F Abnormally dangerous activities are inherently perilous because of the actions and devices involved.

True - Abnormally dangerous activities are inherently perilous because of the actions and the devices involved

T/F An ultrahazardous activity must proximately cause the plaintiff's injuries in order for the defendant to be held strictly liable.

True - Animals or abnormally dangerous activities must proximately cause the victim's injuries if the tortfeasor is to be held strictly liable

T/F Mistake is a good-faith belief that one can commit torts with impunity.

True - As a legal defense, mistake is the good-faith belief, based upon incorrect information, that one is justified in committing an intentional tort under the circumstances. The elements may be detailed as follows: (1) good-faith conviction that one's actions are justi-fied (2) with the belief based upon faulty information; and (3) the conduct would otherwise be considered tortious but for the erroneous belief.

T/F Over the past twenty years, many state courts and legislatures have abolished or significantly limited sovereign immunity.

True - Beginning in the early twentieth century, American courts began to whittle away at the governmental immunity doctrine. Many state courts have abolished sovereign immunity as an absolute defense to governmental liability

T/F Common targets of public nuisance laws include nudist colonies.

True - Common targets of public nuisance laws include institutions devoted to (1) gambling, (2) prostitution, (3) distribution of sexually explicit materials, (4) sale of alcohol, (5) nudist colonies, or (6) toxic waste management.

T/F Consent is a defense to all intentional torts.

True - Consent may be a defense to all intentional torts

T/F Contributory negligence is generally not a defense in strict products liability cases.

True - Contributory negligence is not a defense to products liability.

T/F Discovery is the phase in a lawsuit when information is exchanged between the parties, and the issues for trial are narrowed.

True - Discovery is the phase in a lawsuit when information is exchanged between the parties and the issues for trial are narrowed.

T/F Who? What? Where? When? Why? and How? are questions frequently asked by reporters, which can also be used by paralegals in investigating the facts and circumstances surrounding a tort case.

True - Every tort case presents the following fundamental ques-tions, which journalists use every day in a reporting context: Who? What? Where? When? Why? How? In tort cases, the paralegal queries: Who injured the victim (plaintiff )? What injuries happened? How did the victim (plaintiff ) get hurt? Where and when did the injuries occur? Why did the victim (plaintiff ) incur injuries (that is, did the defendant[s] cause the victim's/plaintiff 's injuries)? How did the injuries occur? What were the actions of the defendant?

T/F Fault is irrelevant to strict liability cases.

True - Fault Is Irrelevant: Absolute (strict) liability holds the tortfeasor responsible for his or her behavior regardless of fault.

T/F Attorneys may be liable for malpractice or subject to discipline for suing the wrong person or business as a defendant.

True - If one files notice, sues the wrong person, or fails to name a proper party, serious problems may arise. For instance, the attorney or law firm may be subject to legal action and/or disciplinary proceedings for filing a frivolous lawsuit against the innocent party. Additionally, the statute of limitations or a notice requirement may run on a client's lawsuit without the correct person(s) having been notified or sued. Mistakes in this area may even result in a claim of malpractice by the client against the attorney.

T/F If the ultimate user fails to properly maintain a product, then he or she cannot recover for injuries under strict products liability.

True - If the ultimate user ignores a discovered defect and, by using the product, is hurt, the user has assumed the risk, and the manufacturer or seller would not be strictly liable. The same is true if the ultimate user fails to properly maintain a product, follow instructions, or heed warnings for safe use.

T/F Factual investigations are designed to determine liability and damages.

True - In part, factual investigations are designed to determine liability and damages

T/F In many jurisdictions, children of tender years can be held liable for their negligent behavior.

True - Most courts do not grant absolute negligence immunity to young children. In-stead, the child tortfeasor's age is merely one factor to be considered in determining the standard of reasonable care that the reasonable child of tender years would have used in a particular case

T/F When a state department or agency oversees and regulates a particular business or profession and issues a license, this is called certification.

True - Most states have a central department or agency that oversees licensed and regulated businesses . . . Agencies can also provide listings of all state licensing requirements. By checking with the state agency, one may discover whether a potential business defendant's license, certification, or insurance has lapsed or is not in good standing.

Ferae naturae refers to

a. wild animals.

Defense of persons or property is best illustrated by which of the following examples? a. Carrie is operating a compressing machine. Gloria accidentally drops her wedding ring into the compression chamber. Gloria shouts to Carrie to stop the machine, but Carrie, who has never liked Gloria, ignores Gloria's plea. Gloria runs over to press the machine's emergency stop button, knocking Carrie aside in the process. b. Russ spots a bank robbery. Running across the street to a tavern, he telephones the police. c. Pedro drives a delivery truck. As he is driving down the street, a child steps into the truck's path. Pedro swerves, crashing into a parked car. d. Rich sees a fire in a pharmacy after closing hours. He breaks open the door and puts out the fire with the extinguisher he carries in his truck.

a. Carrie is operating a compressing machine. Gloria accidentally drops her wedding ring into the compression chamber. Gloria shouts to Carrie to stop the machine, but Carrie, who has never liked Gloria, ignores Gloria's plea. Gloria runs over to press the machine's emergency stop button, knocking Carrie aside in the process. - Conduct that otherwise might be assault or battery may be vindicated if the action is taken to defend property from damage or dispossession. A property owner has the right to possess and safeguard his or her property from others.

Which of the following defenses is not applicable to strict products liability cases? a. Contributory negligence b. Assumption of risk c. Ultimate user's misuse of product d. None of these choices.

a. Contributory negligence - Courts have generally held that contributory negligence is not a defense in products liability cases.

Which of the following examples best illustrates necessity? a. Rich sees a fire in a pharmacy after closing hours. He breaks open the door and puts out the fire with the extinguisher he carries in his truck. b. Gretchen spots a cat caught in a tree. Running across the street to a library, she telephones the fire department. c. While watching a wrestling match, the fan sitting next to Natalia shouts expletives. Natalia hits him in the side to shut him up. d. While walking to class, Ushi spots a piece of jewelry lying on the sidewalk. She takes it to the police station

a. Rich sees a fire in a pharmacy after closing hours. He breaks open the door and puts out the fire with the extinguisher he carries in his truck.

Which of the following is the best illustration of governmental immunity? a. The county's failure to provide 911 emergency telephone dispatch service between the hours of midnight and 6:00 a.m, b. The city police beating up a suspect in the street c. The state police stopping only out-of-state drivers for traffic violations d. The county prosecutor offering reduced sentencing to criminal defendants in exchange for stolen goods

a. The county's failure to provide 911 emergency telephone dispatch service between the hours of midnight and 6:00 a.m - When governmental bodies perform certain public protection activities, such as providing fire, police, or ambulance services, they are considered to be undertaking governmental functions. Persons performing govern-mental functions are immune from tort liability, under the early-twentieth-century court decisions. Even if the fire, police, or ambulance departments committed torts against a citizen while performing their duties, the old case law would define these as governmental actions as immune from liability.

If the plaintiff is in an accident and hurts the same part of her body that was injured in the past during another accident, this is called

a. an aggravation of an existing injury. - An award against the grocery store for aggravation of an existing condition may be much less than the award for the preexisting stiff-back condition.

An accident scene should be documented

a. as soon as possible. - Documenting the scene should be done as soon as possible, because valuable evidence is often lost as conditions change over time. Accident scenes can alter naturally due to environmental changes; or, more frequently, people might deliberately modify conditions to prevent others from being harmed or to conceal possible liability

As a result of workers' compensation statutes,

a. employers are immune from most employee suits. - Workers' compensation statutes bar tort actions against the employer and are considered a worker's sole remedy for on-the-job injuries and death, regardless of fault, in most states.

Governmental actions are those that

a. governments perform when they provide certain public protection services. - When governmental bodies perform certain public protection activities, such as providing fire, police, or ambulance services, they are considered to be undertaking governmental functions.

The term use and enjoyment is often used in

a. nuisance cases - Use and enjoyment is a term of art in nuisance law.

Smoking in public, where such activity is prohibited, is considered a

a. nuisance per se. - A public nuisance per se is an activity that violates the statute and is automatically considered a public nuisance. An example of this would be smoking in public, where such activity is prohibited

The Restatement (Second) of Torts § 520 states that

a. persons engaged in abnormally dangerous activities shall be strictly liable for injuries caused by their actions. - The Restatement (Second) of Torts § 520 declares that persons engaged in abnormally dangerous activities shall be strictly liable for injuries caused by their actions

The governmental/proprietary distinction is used by some courts in cases involving

a. sovereign immunity - Within the past 20 years, many state courts have abolished the governmental/ proprietary distinction and with it the defense of sovereign immunity.

In products liability cases, a plaintiff can bring three different causes of action:

a. strict tort liability, negligence, and breach of warranty. - Products liability is any form of liability arising out of the use of a defective product. A plaintiff can bring three different causes of action depending on the facts: strict tort liability, negligence, or breach of warranty.

The defense of mistake includes all of the following elements except a. use of reasonable force. b. good-faith conviction that one's actions are justified. c. belief based on false information. d. conduct that would ordinarily be considered tortious.

a. use of reasonable force. - As a legal defense, mistake is the good-faith belief, based upon incorrect information, that one is justified in committing an intentional tort under the circumstances. The elements may be detailed as follows: (1) good-faith conviction that one's actions are justified (2) with the belief based upon faulty information; and (3) the conduct would otherwise be considered tortious but for the erroneous belief.

When a plaintiff sues all of the sellers along the product distribution chain, this is sometimes called

c. "going for the deep pocket."

In which cases would a court most likely apply a balancing test comparing the benefits to the hazards of a particular activity?

c. Abnormally dangerous activity cases - Courts often apply a balancing test to decide if an activity is abnormally dangerous.

The public policy behind products liability is based on which of the following? a. Businesses should be held liable for civil wrongdoing. b. Businesses should be held liable for criminal wrongdoing. c. Businesses manufacturing and selling defective products are in the best economic position to bear the expenses incurred when a faulty product injures an innocent user. d. Consumers should use class action suits to seek restitution for faulty products.

c. Businesses manufacturing and selling defective products are in the best economic position to bear the expenses incurred when a faulty product injures an innocent user. - Products liability is society's decision, through its courts and legislatures, that businesses manufacturing and selling defective products are in the best economic position to bear the expenses incurred when a faulty product injures an innocent user.

Which kind of questions should be used to elicit more detailed responses from witnesses?

c. Closed-ended questions - If needed, you can follow up with closed-ended questions for more details.

Which of the following examples best illustrates strict products liability? a. Lora bought a tube of toothpaste that contained a metal pin inside. She discovered the pin when she squeezed the toothpaste. She was not hurt by the pin. b. Fritz bought a container of yogurt at the grocery store. He failed to refrigerate it for 12 hours and then became ill after eating it. c. Deb bought a motorcycle that had defective spokes in the front wheel. While she was driving down the highway, the front tire broke, sending her hurtling over the handlebars. d. All of these choices.

c. Deb bought a motorcycle that had defective spokes in the front wheel. While she was driving down the highway, the front tire broke, sending her hurtling over the handlebars.

The public officer's immunity for legal process enforcement is best illustrated by which of the following examples? a. Mick, the county clerk, mailed a plaintiff's complaint and summons to the defendant, not knowing that the complaint contained defamatory remarks. b. Karla, the bailiff, removed a boisterous spectator from court proceedings. c. Jackie, a deputy sheriff, shot the defendant's dog that attacked her after she entered the defendant's land to serve a subpoena. d. None of these choices.

c. Jackie, a deputy sheriff, shot the defendant's dog that attacked her after she entered the defendant's land to serve a subpoena.

Which of the following best illustrates the immunity extended to children of tender years? a. Doug, age 10, throws a ninja sword at Colleen, age 6, injuring her leg. b. Gunner, age 9, shoots a BB gun at Bryce, age 11, wounding his chest. c. Madison, age 2½, hits Tristan, age 5, in the head with a frying pan. d. All of these choices.

c. Madison, age 2½, hits Tristan, age 5, in the head with a frying pan. - Children of tender years are usually defined as young children under the age of seven years

In wrongful death actions, which of the following damages are usually not recoverable? a. Lost lifetime earnings potential b. Loss of consortium c. Punitive damages d. None of these choices.

c. Punitive damages - Wrongful death statutes usually define the types of damages that plaintiffs may recover against defendants. These damages include lost lifetime earnings potential and loss of consortium.

Which of the following is not one of the recent tort trends? a. Off-label use of drugs b. Veterinary malpractice c. Slip-and-fall cases d. Cyber-squatting

c. Slip-and-fall cases

Which of the following best illustrates the successful use of public official immunity? a. Superior Court Judge Winston was sued for trespass to land by his neighbor, Mr. Hoffmann, who claimed that the judge entered his property and cut a dozen roses from Mr. Hoffmann's prize-winning rose bushes. b. Mayor Teresa Kalb was arrested for driving under the influence of alcohol. c. State legislator Megan O'Shea stated during a committee hearing on her bill that members of a lobby group, Defenders of Decency (DOD), which opposed her bill, were "just another bunch of extremists trying to grab the spotlight." DOD sued O'Shea for defamation. d. All of these choices.

c. State legislator Megan O'Shea stated during a committee hearing on her bill that members of a lobby group, Defenders of Decency (DOD), which opposed her bill, were "just another bunch of extremists trying to grab the spotlight." DOD sued O'Shea for defamation.

Which of the following is not one of the duties performed by paralegals during personal injury litigation? a. Research legal issues b. Prepare discovery requests c. Take depositions of witnesses d. None of these choices.

c. Take depositions of witnesses

Which of the following best illustrates a public nuisance? a. Cathy has raised hogs on her farm since 1990. Dale began a subdivision development adjacent to the farm in 1992. The smell from Cathy's farm has severely reduced lot sales in Dale's subdivision. b. Arnie sells pornographic literature at his "camera shop" downtown across from an elementary school. The city prosecutor filed a criminal complaint to shut down Arnie's operation under a local ordinance. c. Juan bought a rock pulverizing machine with which he makes homemade cement. Juan works at a night job from 10:00 p.m. to 3:00 a.m. and then runs the machine from 3:00 to 6:00 a.m. before going to bed. The machine can be heard clearly at a distance of five blocks. d. All of these choices.

d. All of these choices.

Which of the following examples best illustrates absolute liability? a. Bob's pet python snake attacked Craig. b. While mixing acids in her laboratory, Dr. Ehlers spilled a vial on Ami's shirt. c. Jadie's pit bull terrier, known in the neighborhood as ill-tempered and vicious, attacked Stephanie. d. All of these choices.

d. All of these choices.

Which of the following is true regarding depositions? a. They are one of the main forms of discovery. b. A court stenographer is normally present to take the testimony. c. They are expensive. d. All of these choices.

d. All of these choices.

Courts use which of the following tests to determine faulty product design? a. Consumer contemplation test b. Danger/utility test c. A state-of-the-art discoverability test d. All of these choices.

d. All of these choices. - Courts decide faulty design (which make products unreasonably dangerous) in terms of three tests: the consumer contemplation test, the danger/utility test, and the state-of-the-art discoverability test.

Which of the following defenses applies to animal-owner liability cases? a. Assumption of risk b. Contributory negligence c. Comparative negligence d. All of these choices.

d. All of these choices. - However, certain exceptions have arisen in the common law for particular types of absolute liability, such as cases involving animals. The following defenses can protect an animal owner from strict liability:1.Assumption of risk2.Contributory and comparative negligence 3.Consent4.Self-defense and defense of others

Proximate cause is important to which of the following tort cases? a. Wild animal-owner liability cases b. Abnormally dangerous activity cases c. Vicious domestic animal cases d. All of these choices.

d. All of these choices. - Proximate cause in absolute liability cases is defined similarly to proximate cause in negligence cases. Animals or abnormally dangerous activities must proximately cause the victim's injuries if the tortfeasor is to be held strictly liable

Which type of activity can constitute private nuisance? a. Physical effects on land b. Health hazards or offending sensibilities c. Unwanted associations with neighboring land uses d. All of these choices.

d. All of these choices. - There are many common examples of private nuisances to which to apply the elements just explained. These situations can be classified in broad categories: (1) physical effects on land, (2) health hazards or offending the sensibilities, and (3) unwanted associations with neighboring uses.

Under wrongful death statutes, who may sue the tortfeasor? a. Dependents of the dead person b. The decedent's siblings c. The decedent's estate d. All of these choices.

d. All of these choices. - Under wrongful death statutes, the surviving family members, usually the victim's spouse or children, become the plaintiffs. However, some statutes allow the victim's parents or siblings to become plaintiffs.

Proprietary actions are those that a. are not immune from tort liability. b. are business-like activities engaged in by the government. c. often include the provision of utility services. d. All of these choices.

d. All of these choices. - proprietary actions | Certain business-like activities performed by governmental bodies that are usually associated with the private sector, and are not given immunity from tort liability.

Which of the following most often involves the defense of implied consent? a. Motor vehicle accidents b. Fistfights c. Attacks by wild animals d. Emergency medical treatment

d. Emergency medical treatment - The most common example of implied consent involves emergency medical treatment.

Which of the following allows private parties to sue the United States in federal court?

d. Federal Tort Claims Act - The Federal Tort Claims Act (FTCA) of August 2, 1946, is a statute enacted by Congress allowing private parties to sue the United States in federal courts for most torts committed by persons acting on behalf of the United States.

Which of the following best illustrates a private nuisance? a. Cathy has raised hogs on her farm since 1990. Dale began a subdivision development adjacent to the farm in 1992. The smell from Cathy's farm has severely reduced lot sales in Dale's subdivision. b. Arnie sells pornographic literature at his "camera shop" downtown across from an elementary school. The city prosecutor filed a criminal complaint to shut down Arnie's operation under a local ordinance. c. Juan bought a rock pulverizing machine with which he makes homemade cement. Juan works at a night job from 10:00 p.m. to 3:00 a.m. and then runs the machine from 3:00 to 6:00 a.m. before going to bed. The machine can be heard clearly at a distance of five blocks. d. None of these choices.

d. None of these choices.