Tort Law Midterm

T/F Burden of proof is sometimes referred to as the prima facie case.

? Once the plaintiff has made a prima facie case (meaning that proof has been established by or beyond a preponderance), the burden shifts to the defendant

T/F Both intentional torts and negligence cases require intent.

False - negligence only requires duty, breach, causation, and damages

T/F Substantial factor analysis is a form of direct causation.

False - substantial factor analysis | A test for indirect causation in negligence cases.

T/F A shopkeeper's questioning of a suspected shoplifter for up to eight hours is considered reasonable.

False

T/F Negligence requires intent to commit a harmful act.

False

T/F The first pleading filed by the defendant in a lawsuit is the complaint

False

T/F The goal of criminal prosecution is to get monetary compensation for the victim.

False - ?

T/F Abuse of process involves criminal lawsuits, whereas malicious prosecution involves civil actions.

False - Abuse of process is the civil equivalent of malicious prosecution.

T/F To prove that intentional tort has been committed, the plaintiff does not have to prove actual harm

False - All intentional torts include three elements: act, intent, and injurious behavior.

T/F Licensees are persons invited onto another's land.

False - All licensees have the owner's implied or expressed permission to be on the land, but the landowner does not have to invite or encourage licensees to visit

T/F Fraud and misrepresentation are identical intentional torts.

False - As a practical matter, however, a tortfeasor who commits fraud also commits misrepresentation, although they technically are not the same tort.

T/F The assumption of risk defense applies even if the plaintiff was unaware of the dangers involved.

False - Assumption of risk involves (1) the plaintiff 's voluntary assumption of a known risk, (2) with a full appreciation of the dangers involved in facing that risk.

T/F Under assumption of risk, the plaintiff's claim is barred even if he or she involuntarily engaged in dangerous activities.

False - Assumption of risk involves (1) the plaintiff 's voluntary assumption of a known risk, (2) with a full appreciation of the dangers involved in facing that risk.

T/F CERCLA is the acronym for a federal statute regulating defamation by computer.

False - Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

T/F If the events that led to the plaintiff's injury were under the exclusive control of the defendant's employees, res ipsa loquitur does not apply.

False - Court opinions often quote the following elements of res ipsa loquitur: 1. The defendant (or his or her employee[s]) must have been in exclusive control of the object or action that produced the plaintiff 's injury.

T/F Defamation by computer means that computers are used to say libelous things about others.

False - Defamation by computer can be defined as the inclusion of false information about a consumer's credit rating in a computer record-keeping system that harms the consumer's ability to secure credit.

T/F As a general rule, employers are vicariously liable for torts committed by employees as they come from and go to work.

False - Employers are usually not vicariously liable for the negligence of their employees while the employees are coming to or going from work.

T/F A verbal threat on the telephone is considered an assault.

False - For instance, Michelle's threat to hit George while talking to him on the telephone does not present an immediate risk, as the task cannot be completed at the time the threat is made. Therefore, no assault has taken place.

T/F Generally, people who are mentally ill are not held to the reasonable person standard.

False - Generally, people who are mentally ill or insane are held to the reasonable person standard, an objective standard, even if they cannot appreciate the danger of their actions.

T/F A hospital cannot be held liable for the negligent acts of a physician hired as an independent contractor, even if the hospital continues to use the independent contractor after learning of his or her negligent services.

False - If the patient is informed that a particular physician is an independent contractor prior to treatment, the hospital would not be responsible for any negligent acts of that physician in the course of treatment. However, there are two main exceptions to this rule: (1) when a hospital continues to use the services of an independent contractor whose services are known to be negligent, and (2) in an emergency room setting when a patient is not aware and/or not advised of a particular treating physician's status due to the immediacy of the treatment needs.

T/F Parties to a lawsuit cannot be required by the judge to try alternative dispute resolution in an effort to settle their dispute.

False - Increasingly, the parties are required, by the judge or by local rules, to select a means other than trial to attempt to settle their dispute. This is called alternative dispute resolution

T/F Intent to do harm is required for negligence.

False - Negligence does not require an intent to commit a wrongful action.

T/F The theory of absolute liability and the theory of negligence per se are essentially the same.

False - Negligence per se is negligence that is beyond debate because the law, usually a statute or ordinance, has established a duty or standard of care that the defendant has violated, thus causing injury to the plaintiff. Strict (absolute) liability is the tortfeasor's responsibility for injuring another, regardless of intent, negligence, or fault.

T/F A person who hires an independent contractor is usually liable for the independent contractor's torts.

False - Persons hiring independent contractors are not vicariously liable for the independent contractors' negligence.

T/F Proximate cause is defined in terms of duty.

False - Proximate cause, or legal cause as it is some-times called, exists when the tortfeasor's actions caused a foreseeable injury to the victim. If foreseeability is not present, then no duty is owed.

T/F Dispossession is an important element of slander of title

False - Slander of title contains three basic elements: 1.False statements regarding a person's ownership of property 2.Intent to hinder or damage the owner's use of the property 3.Communication (publication) of the falsehoods to third parties

T/F Statutes of limitations are irrelevant to negligence defenses.

False - States' statutes of limitations vary in numbers of years and among the different types of negligence.

T/F Strict liability is the tortfeasor's responsibility regardless of fault, but negligence must be proven.

False - Strict (absolute) liability is the tortfeasor's responsibility for injuring another, regardless of intent, negligence, or fault.

T/F Theo threw a snowball at Jamal but it hit Tessa instead. Theo has committed a battery against Jamal.

False - Strictly defined, battery is the intentional, unconsented touching of another person in an offensive or injurious manner. There are three basic elements to this tort: 1. Nonconsensual physical contact 2. Offensive or harmful contact 3. The tortfeasor's intent to touch another person in an offensive or injurious manner

T/F The contributory negligence defense has replaced comparative negligence in most states' common law or statutes.

False - The comparative negligence defense has replaced contributory negligence in most states' common law or statutes.

T/F Affirmative defenses must be alleged or proven by the plaintiff.

False - The defendant might also assert affirmative defenses, which if true might relieve the defendant of liability.

T/F Trespass to land requires injury to the real estate.

False - The elements of trespass to land are threefold: 1. Unauthorized entry upon another person's real estate 2. Tortfeasor's intent to enter without consent 3. Tortfeasor's actions interfering with the landowner's exclusive right to use the land (possession)

T/F With regard to vicarious liability, employment is an essential element in proving the principal/agent relationship.

False - The principal/agent relationship, however, need not be that of employer and employee.

T/F The plaintiff and the defendant decide how to apportion comparative negligence in a lawsuit.

False - The trier-of-fact decides the percent-ages in comparative negligence

T/F When a single tortfeasor causes injury, he or she is jointly and severally liable.

False - This is called joint and several liability, another form of causation, in which multiple tortfeasors are each held individually accountable to the victim for the combined negligent behavior of all the tortfeasors.

T/F Transferred intent holds tortfeasors accountable for their actions only when they desired to hit the third person involved.

False - Transferred intent is an effective tool for protecting persons from misdirected physical contacts. It holds the tortfeasor accountable for the consequences of his or her actions even though, strictly speaking, he or she did not desire to hit the third person involved.

T/F False imprisonment occurs even if the tortfeasor did not intend to confine the victim.

False - True - Essentially, there are four elements to false imprisonment: 1. Confinement without captive's consent 2. Tortfeasor's intent to confine victim 3. Confinement for an appreciable length of time 4. No reasonable means of escape

T/F Occasional teasing constitutes a hostile work environment.

False - We also note that the standards for judging hostility are demanding such that "the ordinary tribulations of the work place, such as, sporadic use of abusive language, gender-related jokes, and occasional teasing" will not constitute a hostile work environment.

T/F Last clear chance is a response to assumption of risk.

False - When a defendant uses the contributory negligence defense against a plaintiff, the plaintiff has a responsive weapon to defeat this defense. This is called the last clear chance doctrine and is a rebuttal to a contributory negligence defense.

T/F A battery is an attempted assault.

False - contact converts an assault into a battery. Assault is distinguishable from battery in that no touching is required for assault.

T/F No actual touching is needed for a battery.

False - contact converts an assault into a battery. Assault is distinguishable from battery in that no touching is required for assault.

T/F Conversion requires injury to the real estate.

False - conversion | Any act that deprives an owner of property without that owner's permission and without just cause.

T/F False light in the public eye is a form of defamation

False - false light in the public eye | One type of the intentional tort of invasion of privacy. Occurs when the tortfeasor publicly attributes to another individual false opinions, statements, or actions.

T/F Publication is the term associated with abuse of process.

The elements of abuse of process are as follows: 1.Misuse of a legal proceeding, or threat of such misuse 2.Misuse to achieve unlawful objectives 3.Injury to the victim as a result of the misuse (Publication is an element of defamation.)

T/F In effect, contributory negligence is a way of describing a plaintiff's negligence toward himself or herself.

True - Contributory negligence is the plaintiff 's own negligence that contributed to his or her injuries.

T/F In both intentional and reckless infliction of emotional distress, the victim must suffer severe mental anguish.

True

T/F Legal malpractice can result when an attorney places his or her own interests before those of the client.

True

T/F The Emergency Medical Treatment and Active Labor Act only covers hospitals that participate in Medicare.

True - A federal statute addressing patient dumping is the Emergency Medical Treatment and Active Labor Act (EMTALA). The act only covers hospitals that participate in Medicare.

T/F A person filing a spurious lien against someone's real estate commits slander of title.

True - A tortfeasor commits slander of title by making false statements about a person's ownership of property. This usually occurs when the tortfeasor falsely calls into question the title to another's property. Normally, cases involving this tort include real estate and the filing of false liens.

T/F Taking someone's television without permission is called trespass to chattel.

True - A tortfeasor commits trespass to chattel when he or she possesses someone's personal property without consent.

T/F Invasion of privacy occurs through appropriation of a person's likeness for profit without permission.

True - Appropriation occurs when the tortfeasor uses a person's name or likeness without permission to gain some benefit.

T/F In arbitration, a dispute is resolved by a person other than a judge, and the decision is binding.

True - Arbitration is the resolution of a dispute by a person other than a judge. This person's decision is binding and not a matter of public record.

T/F In an assault, the threat must be immediate or imminent.

True - Assault involves the imminent or immediate threat that unconsented contact is about to occur.

T/F At common law, contributory negligence absolutely bars the plaintiff's negligence claim.

True - At common law, contributory negligence barred the plaintiff from recovering any damages from the defendant.

T/F Commercial disparagement involves false statements about a person's business, goods, or services.

True - Commercial disparagement can be divided into three elements: 1. False statements about an individual's goods, services, or business 2. Intent to injure the victim's ability to use goods, furnish services, or conduct business 3. Communication (publication) to third parties

T/F Comparative negligence apportions liability between plaintiff and defendant and adjusts the plaintiff's recovery accordingly.

True - Comparative negligence is used to calculate the amount of the defendant's liability to the plaintiff.

T/F Contrary to popular belief, the largest amounts of damages have been awarded to businesses rather than people bringing lawsuits.

True - Contrary to popular belief, the largest amounts of damages have been awarded to businesses, rather than individuals bringing lawsuits

T/F Trespass to chattel is similar to conversion.

True - Conversion occurs when a tortfeasor, without consent, deprives an owner of possession of the owner's chattel and puts or converts the property to the tortfeasor's own use. It is essentially a broader version of trespass to chattel, but both torts developed separately.

T/F False imprisonment involves holding a person against his or her will for an unreasonable period of time.

True - Essentially, there are four elements to false imprisonment: 1. Confinement without captive's consent 2. Tortfeasor's intent to confine victim 3. Confinement for an appreciable length of time 4. No reasonable means of escape

T/F For reckless infliction of emotional distress, intent is not essential.

True - For example, for reckless infliction of emotional distress, intent is not essential.

T/F Sexual harassment can be filed with the federal or state government.

True - In addition to tort actions, sexual harassment claims can be brought under the provisions of Title VII. Complaints can be filed with the federal or state government

T/F When a statute is violated and a person is injured, but the violation of the statute did not cause the person's injury, the statute would still have a direct bearing on the negligence action.

True - In most states, the violation of such a statute would be considered negligence per se. This would mean that the proof of the violation of the statute would be sufficient to show that there was negligence

T/F A single act can be the basis for both a tort claim and a criminal action.

True - It is important to note that a single act can be the basis for both a tort and a criminal action.

T/F Libel is written defamation, whereas slander is oral defamation.

True - Libel is a written false and disparaging statement about an individual that the tortfeasor communicates to a third party. Slander is an oral false and disparaging statement about a person

T/F Many states have abolished the three-tier landowner standards of care

True - Many courts have in fact abolished the three-tier landowner standards of care.

T/F Many state legislatures have enacted motor vehicle vicarious liability statutes.

True - Many state legislatures have enacted statutes imposing vicarious liability on owners for the negligence of others who drive their vehicles. These are sometimes called motor vehicle consent statutes.

T/F If a doctor's care of a patient falls below the standard of care owed to the patient but the patient did not suffer any physical or mental harm, the patient would not be able to prove medical malpractice.

True - Medical malpractice occurs when a medical provider's treatment of a patient falls below the standard of care and causes injury or death.

T/F To commit negligence, the tortfeasor must breach his or her duty of care.

True - Negligence includes the following elements: 1.Duty of care 2.Breach of the duty by the tortfeasor (unreasonable conduct) 3.Causation of injury to the victim 4.Damages to the victim (actual harm)

T/F Nominal damages are awarded in situations in which no actual damages have occurred.

True - Nominal damages are awarded in situations in which no actual damages have occurred, or when the amount of injury has not been proven even though a right has been violated in an intentional tort action.

T/F The statute of limitations is one of the few areas in the practice of law for which there is no remedy if one misses the deadline.

True - Note that the statute of limitations is one of the few areas in the practice of law for which there is no remedy if one misses the deadline.

T/F An example of an affirmative defense is to claim that the statute of limitations has elapsed.

True - One example of an affirmative defense is to claim that the statute of limitations, or the time for filing a suit, has elapsed.

T/F In some jurisdictions, recovery for negligent infliction of emotional distress is partially limited to cases in which the plaintiff witnesses serious injury to a family member.

True - Other courts have restricted recovery in negligent infliction cases to bystander plaintiffs who are related to the victim whom they witnessed being injured. This may be called the family relationships rule.

T/F Scope of employment means the range of conduct that an employer expects an employee to perform as part of his or her job.

True - Scope of employment can be described as the range of conduct that the employer expects the employee to perform as part of his or her job.

T/F The special negligence rule that applies to trespassing children is called attractive nuisance.

True - Special rule for trespassing children: attractive nuisance

T/F The court can draw an adverse inference or preclude the admission of evidence or testimony when spoliation of evidence has occurred.

True - Spoliation of evidence is the deliberate withholding, hiding, or destroying of evidence relevant to a legal proceeding. An example of this would be in a products liability case where the injured plaintiff who was in possession of the car that allegedly caused his serious injuries is unable to produce it at the time of trial. In these cases, the court can draw an adverse inference, preclude evidence or testimony, or dismiss a claim at the time of trial.

T/F There is no duty to come to the assistance of those in need.

True - There is no duty to come to the assistance of those in need.

T/F To be successful in claiming defamation, a public figure must show that a statement was made with actual malice

True - To be successful in claiming defamation, a public figure must show that a statement was made with actual malice.

T/F Tort law is a combination of English and American common law, plus statutory law.

True - Today's tort law is a combination of English and American common law, plus statutory law.

T/F Tort analysis should go from the general to the specific.

True - Tort analysis should go from the general to the specific.

T/F Tort law is largely composed of minimum standards of conduct.

True - Tort law is largely composed of minimum standards of conduct.

T/F Toxic trespass occurs when an ultrahazardous pollutant interferes with a landowner's use of his or her property.

True - Trespass to land occurs when toxic substances enter upon another's property. The trespass elements remain the same: 1.Unauthorized entry upon another person's real estate 2.Tortfeasor's intent to enter without consent 3.Tortfeasor's actions interfering with the landowner's exclusive right to use the land (possession) In the case of toxic substances, the unauthorized entry is seepage or accumulation of the hazardous material on the victim's land.

T/F In res ipsa loquitur, the defendant must be in a better position to prove his or her lack of negligence than the plaintiff is to prove the defendant's negligence.

True - Under res ipsa loquitur, the defendant must be in a better position to prove that he or she was not negligent than the plaintiff is to establish the defendant's negligence.

T/F Under the doctrine of res ipsa loquitur, the defendant's negligence is presumed as a result of his or her actions.

True - Under the doctrine of res ipsa loquitur, the defendant's negligence is presumed as a result of his or her actions.

T/F Unreasonable intrusion is an excessive and highly offensive invasion of one's seclusion or solitude.

True - Unreasonable intrusion involves an excessive and highly offensive assault upon one's seclusion or solitude.

T/F Appreciable confinement is defined as unreasonable under the circumstances.

True - Usually, appreciable confinement is defined as unreasonable under the circumstances.

T/F Truth is not a defense against public disclosure of private facts.

True - When a tortfeasor communicates purely private information about a person to the public without permission, and a reasonable person would find this disclosure extremely objectionable, then invasion of privacy by public disclosure of private facts has taken place. Truth is not a defense against this tort, because it is the unauthorized and offensive public revelation of private facts that is being protected against.

T/F The standard used to determine if a physical contact is offensive is the reasonable person standard.

True - Whether or not the physical contact is offensive is judged by the reasonable person standard.

T/F Actual physical contact converts an assault into battery.

True - contact converts an assault into a battery. Assault is distinguishable from battery in that no touching is required for assault.

T/F Scope of duty is defined in terms of the foreseeability of injury to the victim.

True - scope of duty | In negligence law, defined in terms of those individuals who might foreseeably be injured as a result of the tortfeasor's actions.

T/F One of the issues included in medical malpractice cases is sexual assault against the patient.

True - search for "Sexual assault on patient"

In a torts case, a. the goal is compensation for the victim. b. the burden of proof is beyond reasonable doubt. c. the victim harmed is society. d. the rules of evidence followed are criminal rules.

a (by process of elimination) In a civil action, a case must be proved by a preponderance of the evidence

Many law firms will not take a medical malpractice case unless the case involves damages of at least

a. $100,000 In fact, many law firms will not take a medical malpractice case unless there is at least $100,000 in damages.

Which of the following is not an element of contributory negligence? a. Defendant may be held liable for an incident in which the plaintiff is injured. b. Plaintiff may be prevented from recovering anything. c. Plaintiff breaches duty of reasonable care to self. d. None of these choices.

a. Defendant may be held liable for an incident in which the plaintiff is injured. At common law, any amount of contributory negligence by the plaintiff, however small, would bar the plaintiff 's recovery against the negligent defendant.

Which of the following best illustrates trespass to chattel? a. Filling your swimming pool with a garden hose connected to your unfriendly neighbor's water supply b. Taking the complimentary soap and shampoo from your hotel room c. Taking an unattended umbrella to a department store's lost-and-found department d. Driving down a barricaded street

a. Filling your swimming pool with a garden hose connected to your unfriendly neighbor's water supply A tortfeasor commits trespass to chattel when he or she possesses someone's personal property without consent.

What distinguishes fraud from misrepresentation?

a. In fraud, the victim surrenders something of value to the tortfeasor, which may not necessarily occur with misrepresentation. Fraudulent misrepresentation exists when the tortfeasor knowingly makes false statements or purposefully behaves in such a way as to deceive the victim. The two torts are quite similar. Both involve false statements or actions. Both include deception as the tortfeasor's objective. Yet fraud features the element of under-handed economic gain: the victim surrenders something valuable to the tortfeasor as a result of the false comments.

Which of the following is the best example of contributory negligence? a. Juan is driving a car on University Drive. Alicia is driving a car on Elm Street. At the University/Elm intersection, which is a four-way stop, both cars run stop signs and collide. b. Summer and Brandon accidentally sever a buried gas pipeline while digging in their backyard. This causes an explosion that damages their house. c. Doc and Sharon own sheep, which escape from their enclosure. The sheep stray onto a neighbor's property, eating the corn and bean crops. The neighbor's land was not fenced. d. Tyrell and Jasmine operate a neighborhood grocery. Blake, one of their customers, slips and falls on a slick spot. Blake was wearing sunglasses inside the store.

a. Juan is driving a car on University Drive. Alicia is driving a car on Elm Street. At the University/Elm intersection, which is a four-way stop, both cars run stop signs and collide.

In which type(s) of cases would res ipsa loquitur most commonly be used? a. Medical malpractice b. Motor vehicle accident c. Trespass d. All of these choices.

a. Medical malpractice Res ipsa loquitur cases often involve medical malpractice, particularly surgery.

Fraud is best defined as

a. the tortfeasor knowingly making false statements, or purposefully behaving, so as to deceive the victim. (?) For fraud to be proved, the following must exist: 1. The defrauder must intend to deceive by making a false representation of material fact. 2. The defrauder must know that the statements made are false. 3. The purpose of the false statements must be to entice the victim into giving the tortfeasor something of value. 4. The innocent party must justifiably rely on the misrepresentation. 5.The innocent party must be injured.

Keeping in mind any applicable defenses, which of the following examples best shows negligence per se? a. Myron parks his truck in a no-parking zone. Dixie parks her motorcycle behind it at a parking meter. The truck jumps out of gear and rolls over the motorcycle. b. As Allison crosses her neighbor's land to reach a fishing stream, she falls into a clearly visible abandoned well. A state statute requires landowners to seal such wells. c. Bubba owns a restaurant. One of his customers is injured when a grease fire breaks out on the grill. The local health code requires restaurants to clean food preparation surfaces daily. Bubba's grill had not been cleaned for several weeks. d. Daniel Li stores a can of lighter fluid on his apartment balcony. This violates his lease. The can overheats and explodes, burning down the building

a. Myron parks his truck in a no-parking zone. Dixie parks her motorcycle behind it at a parking meter. The truck jumps out of gear and rolls over the motorcycle.

Which example best illustrates conversion? a. Taking someone else's bicycle from a parking rack and riding it across town b. Stepping into a store after closing hours c. Having an overdue library book checked out in your name d. Having your landlord lock you out of your apartment even though you've paid rent and haven't violated the lease

a. Taking someone else's bicycle from a parking rack and riding it across town conversion | Any act that deprives an owner of property without that owner's permission and without just cause.

Which of the following is not associated with negligent infliction of emotional distress? a. The frolic and detour rule b. The physical manifestations rule c. The zone of danger rule d. The sensory perception rule

a. The frolic and detour rule frolic and detour rule | Conduct of an employee that falls outside of the scope of employment that is purely for the benefit of said employee.

Which of the following constitutes trespass to land? a. Throwing trash in a neighbor's backyard b. Looking into a neighbor's second-story window with a telescope c. Entering a public building on a Sunday to use the public telephone d. None of these choices.

a. Throwing trash in a neighbor's backyard The neighbor's use of his or her backyard is severely hampered by the accumulation of another's trash. The tortfeasor's conduct in either case has disrupted the land-owner's exclusive use of the real estate. This is the foundation of trespass to land.

Which of the following describes the theory of joint and several liability? a. When multiple defendants act together to injure the plaintiff, all defendants are liable for the harm. b. But for the defendant's actions, the plaintiff's injury would not have happened. c. When multiple defendants combine to injure the plaintiff, a single defendant is liable if his or her actions were a substantial factor in producing the harm. d. None of these choices.

a. When multiple defendants act together to injure the plaintiff, all defendants are liable for the harm. Joint and several liability holds multiple defendants liable for a plaintiff 's injuries when those defendants com-bine to create the harm.

Apprehension, as used in assault, means

a. a person reasonably fears for his or her physical safety in anticipation of being struck by an unconsented, harmful, or distasteful contact. The tort of assault is also intended to protect individuals from the fear or apprehension that unconsented contact will take place. Apprehension means that a person reasonably fears for his or her physical safety in anticipation of being struck by the unconsented harmful or distasteful contact.

Most negligence cases are based on

a. an affirmative duty or act owed to another that is improperly performed. Most negligence actions are based upon an affirmative duty or act owed to another that is improperly performed.

Lauren walked into a grocery store to buy some vegetables. As she walked down an aisle, she slipped on some spilled milk and fell down, breaking her arm. For purposes of premises liability, Lauren would be classified as

a. an invitee. Usually, invitees are persons coming onto the land for some purpose that the owner wishes to serve. Commonly, this includes any business, but could also include nonprofit organizations, such as churches, soup kitchens, charitable hospitals, or even colleges.

In slander of title, the term publication means

a. communication to third parties. Slander involves oral communication that does the same thing. Communication to third persons is called publication.

Negligence is defined as

a. failure to exercise reasonable care to avoid injuring others. Negligence is the failure to exercise reasonable care to avoid injuring others.

The attorney/client relationship is a:

a. fiduciary relationship. An attorney/client relationship is a fiduciary relationship.

All intentional torts include injurious behavior, act, and

a. intent. All intentional torts include three elements: act, intent, and injurious behavior.

In actions involving negligence per se,

a. negligence is presumed because of the tortfeasor's violation of a statute. Under the doctrine of res ipsa loquitur, the defendant's negligence is presumed as a result of his or her actions.

The shopkeeper's privilege

a. permits a shopkeeper to stop and detain a suspected shoplifter for a reasonable period of time. The shopkeeper's privilege allows a shopkeeper to detain a suspected shoplifter on store property for a reasonable period of time, so long as he or she has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.

The coming and going rule

a. states that employers are not vicariously liable for the negligence of their employees while the employees are coming and going to work. Employers are usually not vicariously liable for the negligence of their employees while the employees are coming to or going from work. This is called the coming and going rule.

Res ipsa loquitur means:

a. the thing speaks for itself. Res ipsa loquitur is a Latin term meaning "the thing [res] speaks [loquitur] for itself [ipsa]."

The person committing a tort is called

a. the tortfeaser. tortfeasor| A person who commits a tort.

Proximate cause is

a. the zone within which the plaintiff's injury was reasonably foreseeable as a consequence of the defendant's behavior. Proximate cause is the zone within which the plaintiff 's injury was reasonably foreseeable as a consequence of the defendant's behavior.

In motor vehicle consent statutes,

a. vicarious liability is imposed on owners of vehicles for the negligence of drivers of other vehicles. Many state legislatures have enacted statutes imposing vicarious liability on owners for the negligence of others who drive their vehicles. These are sometimes called motor vehicle consent statutes.

In infliction of emotional distress cases, ordinary sensibilities are best defined as

a. whether a reasonable person would suffer emotional distress as a result of the tortfeasor's actions. Actual Emotional Distress. Naturally, the victim must actually suffer emotionally as a result of the tortfeasor's antics. Again, the test for anguish revolves around the way a reasonable person of ordinary sensibilities would react to the tortfeasor's actions

When a lawsuit is decided by someone other than a judge, and the decision is binding, the procedure is called

arbitration - Arbitration is the resolution of a dispute by a person other than a judge. This person's decision is binding and not a matter of public record.

Which of the following is NOT an element of tortious interference with reasonable expectations of inheritance? a. A person has an expectation that he or she will receive an inheritance. b. A third party unintentionally interferes with the expectation. c. It is reasonably certain that without the interference, the inheritance would have been received. d. There are damages as a result.

b. A third party unintentionally interferes with the expectation. Generally the following elements are required for tortious interference with expectations of inheritance: 1. A person or entity must have an expectation that he or she will receive an inheritance. 2. A third party must intentionally interfere with this expectation. 3. It is wrongful or tortious behavior to interfere. 4. It is reasonably certain that without the interference, the inheritance would have been received. 5. There must be damages as a result.

In which of the following does the trier-of-fact apportion liability between negligent parties to adjust the recovery?

b. Comparative negligence The trier-of-fact decides the percent-ages in comparative negligence. Thus, the jury (or judge, in a bench trial) must closely examine the facts and assign negligence percentages to the plaintiff and the defendant.

Under the doctrine of res ipsa loquitur, which party has the burden of proof?

b. Defendant Under the doctrine of res ipsa loquitur, the defendant's negligence is presumed as a result of his or her actions. This shifts the burden of proof to the defendant.

When a plaintiff accepts a risk knowingly and voluntarily by reason of the plaintiff's knowledge, this is called

b. implied assumption of risk. In implied assumption of risk, a plaintiff accepts a risk knowingly and voluntarily by reason of the plaintiff 's knowledge

Which of the following is the best example of comparative negligence? a. Tariq estimates construction costs for a builder. Because of his poor mathematical skills, Tariq's calculations are grossly incorrect. This results in significant lost income for Tariq's employer. b. Jared and Ty are tag-team wrestlers. During one wrestling match, Jared puts a head-lock hold on Ty, severely injuring his neck and shoulders. c. Brian is a hunter. While searching for elk, Brian sees a brown shape moving through the trees. Although the figure is clearly walking upright on two legs, Brian shoots and wounds Myra, a game warden. d. Marcia is a cutter at a wholesale meat-packing company. She always uses safety glasses while cutting the meat. One day, the metal saw blade breaks, sending metal slivers flying. One sliver penetrates the glasses and strikes Marcia in the left eye.

b. Jared and Ty are tag-team wrestlers. During one wrestling match, Jared puts a head-lock hold on Ty, severely injuring his neck and shoulders. The comparative negligence defense has three elements: 1. The plaintiff 's negligence contributed to his or her own injuries. 2. Calculation of the percentage of the plaintiff 's negligence that contributed to his or her injuries. 3. Calculation of the percentage of the defendant's negligence that produced the plaintiff 's injuries.

Which of the following is the best example of malicious prosecution? a. Angel files a small-claims lawsuit against her next-door neighbor, who keeps dumping trash in Angel's backyard. b. Jim files an unfounded criminal complaint against Francesco with the county prosecutor. c. Lisa files a lawsuit in U.S. District Court against her employer, alleging sexual discrimination. d. Murphy files a lien against a customer who has agreed to pay his debt over a period of several months, and all payments have been made (and accepted by Murphy) on time to date.

b. Jim files an unfounded criminal complaint against Francesco with the county prosecutor. Abuse of process is the civil equivalent of malicious prosecution.

Which of the following is not an example of confinement, an element of false imprisonment? a. Locking the victim in a room with one door and no windows. b. Placing armed guards outside the victim's apartment while the victim is asleep. c. Posting a sign outside a store's shoplifter detention area reading, "WARNING! ATTACK DOGS AWAIT OUTSIDE THIS ROOM!" d. Placing the victim in the back seat of an automobile, with all doors unlocked, driving at 75 mph on the interstate.

b. Placing armed guards outside the victim's apartment while the victim is asleep. All methods of confinement include (1) a restriction of the victim's freedom of movement, (2) the captive's awareness or fear of the restriction, and (3) the victim's nonconsent to the restriction.

Which of the following is not a federal statute regulating environmental toxins? a. The Hazardous Materials Transportation Act b. The Environmental Protection Agency c. The Comprehensive Environmental Response, Compensation, and Liability Act d. All of these choices.

b. The Environmental Protection Agency The Hazardous Materials Transportation Act establishes strict requirements for transporters of hazardous waste. Detailed record keeping is required to ensure compliance with the act, 49 U.S.C. §§ 1801-1812 (1992). Another federal statute, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), addresses any "imminently hazardous chemical substance or mixture"

Foreseeable plaintiffs theory asks:

b. Was it reasonably foreseeable that the person hurt would be injured as a result of the tortfeasor's actions? One asks the threshold question: Was it reasonably foreseeable that the person injured would be harmed as a consequence of the tortfeasor's actions? If so, the scope of the duty of reasonable care includes the individual hurt. This is sometimes called the foreseeable plaintiffs theory, because it was reasonably foreseeable that the plaintiff (who is suing the tortfeasor [defendant] for negligence) would be damaged because of the tortious conduct.

Indemnity is

b. a contract to reimburse another for actual loss suffered. indemnity | A contract to reimburse another for actual loss suffered.

Negligent misrepresentation is

b. a false statement made when the one making the statement should have known better. Negligent misrepresentation is a false statement made when the one making the statement should have known better.

Mike is a door-to-door salesperson. As he walks to Holly's apartment door, he slips on a roller skate. For purposes of premises liability, Mike would be classified as

b. a licensee. Examples of licensees include social guests, such as friends who gather at a person's house to study or neighbors coming over to borrow tools; door-to-door salespersons or charitable solicitors (when the landowner has not prohibited their entry by posting warning signs); and frequent trespassers to whose incursions the landowner implicitly consents (such as when trespassers frequently use shortcuts that the landowner does not discourage through fencing or sign-posting).

A tort is

b. a wrongful injury to a person or a person's property. A tort is a wrongful injury to a person or his or her property.

Parties to a dispute who opt for alternate dispute resolution instead of a formal court trial

b. avoid a costly court proceeding. Alternative dispute resolution is a method to resolve a legal problem without a court decision. This avenue of case resolution is becoming increasingly popular as parties wish to avoid costly public court proceedings.

In a negligence case, the plaintiff must prove that all negligence elements existed

b. by a preponderance of the evidence. Most often, the plaintiff must prove that the defendant was negligent in causing the plaintiff 's injuries. This burden of proof calls for a preponderance of the evidence.

If the tortfeasor's actions resulted in the victim's injuries, then the tortfeasor was the

b. cause-in-fact of the victim's harm. cause-in-fact | The cause of injury in negligence cases. If the tortfeasor's actions resulted in the victim's injuries, then the tortfeasor was the cause-in-fact of the victim's harm.

Personal property is often called

b. chattel. Chattel is personal property, as opposed to real property, which is land.

When a plaintiff violates his or her duty of reasonable care to himself or herself, and this proximately causes the plaintiff's injury, this is called

b. contributory negligence. Contributory negligence is the plaintiff 's negligence that contributed to his or her own injuries. The plaintiff was negligent toward himself or herself and caused (in whole or in part) the harm.

All of the following are elements of trespass to land EXCEPT a. unauthorized entry onto another's real estate. b. intent to injure another's real property. c. interfering with an owner's exclusive use of his or her land. d. entering another's land without permission.

b. intent to injure another's real property. The elements of trespass to land are threefold: 1. Unauthorized entry upon another person's real estate 2. Tortfeasor's intent to enter without consent 3. Tortfeasor's actions interfering with the landowner's exclusive right to use the land (possession)

Respondeat superior means

b. let the superior answer.

When proof that a statute has been violated is sufficient to show that there is negligence, this is considered

b. negligence per se. In most states, the violation of such a statute would be considered negligence per se. This would mean that the proof of the violation of the statute would be sufficient to show that there was negligence

According to the zone of danger rule,

b. only bystanders who are in the zone of danger can recover for negligent infliction of emotional distress. Courts have attempted to establish such limits by creating the zone of danger rule. Under this rule, only bystanders who fall within the zone of danger can recover for negligent infliction of emotional distress.

The Hippocratic Oath establishes the basic standards of ethics for

b. practicing medicine. The Hippocratic Oath was written by the Greek physician Hippocrates over 2,000 years ago. It established the basic standards of ethics and for practicing medicine.

An example of strict liability is

b. products liability. Products liability is one form of strict liability.

Trespasses to land in which no actual harm comes to the landowner are sometimes called

b. technical trespasses. Thus, simply walking across someone's front lawn without permission is trespass to land, although no actual harm arises from the conduct. These types of trespasses to land are often called technical trespasses. Courts generally award only nominal damages. In technical trespass cases, courts usually award a minimal sum, such as $1 in nominal damages, because no actual injury resulted from the trespass.

Negligence may be broadly defined as

b. the failure to exercise reasonable care to avoid injuring others or their property. Negligence is the failure to exercise reasonable care to avoid injuring others.

In battery cases, whether physical contact is considered offensive is judged by:

b. the reasonable person standard. Whether or not the physical contact is offensive is judged by the reasonable person standard.

Caps have been placed on the amount of money an injured plaintiff can collect in medical malpractice claims due to

b. tort reform. In some states, as a result of recent tort reform, the legislatures have enacted caps on the amount of damages that can be awarded in particular types of cases, such as medical malpractice claims.

Appropriation occurs when the tortfeasor

b. uses a person's name or likeness without permission to gain some benefit. Appropriation occurs when the tortfeasor uses a person's name or likeness without permission to gain some benefit.

Which of the following is the best example of misrepresentation? a. A used-car salesperson puts a sign on a 1966 Ford Custom 500 automobile, indicating that it has "low mileage and loving care." b. A politician announces at a fund-raising dinner that, if elected, he or she will vote against new taxes. c. A plaintiff's lawyer tells the defendant's counsel that settlement is possible, when the plaintiff has previously indicated a desire not to settle. d. A roofer states that a homeowner's entire roof must be replaced, when adequate repairs could be made by replacing a few loose shingles.

c. A plaintiff's lawyer tells the defendant's counsel that settlement is possible, when the plaintiff has previously indicated a desire not to settle. Fraudulent misrepresentation exists when the tortfeasor knowingly makes false statements or purposefully behaves in such a way as to deceive the victim. The two torts are quite similar. Both involve false statements or actions. Both include deception as the tortfeasor's objective. Yet fraud features the element of under-handed economic gain: the victim surrenders something valuable to the tortfeasor as a result of the false comments.

Which of the following is not a type of invasion of privacy? a. Appropriation b. False light in the public eye c. Arson d. Unreasonable intrusion

c. Arson In tort law, there are four separate types of invasion of privacy: 1. Appropriation 2. Unreasonable intrusion 3. Public disclosure of private facts 4. False light in the public eye

Transferred intent is an element of which of the following intentional torts?

c. Battery Transferred intent means that the contact directed at one person carries over to another individual who was inadvertently struck; battery would thus have occurred to the unintended victim.

Which of the following defenses can completely bar the plaintiff's recovery of damages? a. Assumption of risk b. Contributory negligence c. Both assumption of risk and contributory negligence d. None of these choices.

c. Both assumption of risk and contributory negligence Assumption of risk is a complete defense to negligence in some jurisdictions. Like common law contributory negligence, it totally bars the plaintiff 's recovery. If the plaintiff assumed the risk, the defendant cannot be liable for negligence.

Which of the following is the best example of intentional infliction of emotional distress? a. Setting fire to a wastebasket in an empty classroom b. Shouting obscenities at a basketball official in an arena seating 10,000 fans c. Calling a friend during an important business meeting to inform him or her of a nonexistent "family emergency" d. Spitting on a crowded sidewalk

c. Calling a friend during an important business meeting to inform him or her of a nonexistent "family emergency" Intentional infliction of emotional distress consists of three elements: 1. Outrageous conduct by the tortfeasor 2. Conduct intended to cause severe mental anguish in the victim 3. The victim's suffering of severe mental anguish as a consequence of the tortfeasor's behavior

How is conversion different from trespass to chattel?

c. Conversion requires the tortfeasor to put the chattel to his or her own use, whereas trespass to chattel does not. Trespass to chattel has elements similar to those of trespass to land: 1. Unauthorized possession of, or interference with the use of, another individual's personal property 2. Intent to deprive (or interfere with) the owner's possession or exclusive use of his or her chattel Conversion occurs when a tortfeasor, without consent, deprives an owner of possession of the owner's chattel and puts or converts the property to the tortfeasor's own use. It is essentially a broader version of trespass to chattel, but both torts developed separately.

Which of the following is not typically an issue involved in medical malpractice cases? a. Abandonment b. Record-keeping errors c. Employee grievance against a hospital for stressful working conditions d. None of these choices.

c. Employee grievance against a hospital for stressful working conditions Typically, medical malpractice cases involve one or more of the following: ◗Abandonment (failure to attend to a patient) ◗Improper diagnosis, missed diagnosis, or delayed diagnosis ◗Medical instruments, such as sponges, needles, and clamps, or other foreign objects left in patient after surgery ◗Lack of informed consent ◗Errors in prenatal diagnostic and genetic testing ◗Death or disability from labor/delivery/post-delivery ◗Failure of hospital to supervise employees ◗Prescription medication errors ◗Sexual assault on patient ◗Death after induction of anesthesia ◗Death or disability from a fall or restraints ◗Record-keeping errors ◗Failure to maintain proper hygiene standards, often leading to a hospital-acquired infection (HAI) ◗Surgical errors (performed on a wrong body part, or causing injury)

Which of the following is not an element of negligence? a. Duty of care b. Damages c. Foreseeability d. All of these choices.

c. Foreseeability Negligence includes the following elements: 1. Duty of care 2. Breach of the duty by the tortfeasor (unreasonable conduct) 3. Causation of injury to the victim 4. Damages to the victim (actual harm)

Which of the following is not one of the factors the reasonable person uses to determine how to behave in any given situation?

c. Foreseeability of special damages Generally, four factors are involved: (1) foreseeability of harm, (2) foreseeability of serious injury, (3) amount of effort needed to prevent the injury, and (4) the social value or benefit of the behavior (Table 2-5). The reasonable person weighs these factors in determining how to behave in any given situation.

Defamation by computer is best illustrated by which of the following examples?

c. Inputting false information about a person's credit into a computer database Defamation by computer can be defined as the inclusion of false information about a consumer's credit rating in a computer record-keeping system that harms the consumer's ability to secure credit.

Slander of title involves which of the following activities? a. Making false statements about the quality of a business's goods b. Making false statements about the quality of a business's services c. Making false statements about an individual's ownership of property d. None of these choices.

c. Making false statements about an individual's ownership of property Slander of title contains three basic elements: 1. False statements regarding a person's ownership of property 2. Intent to hinder or damage the owner's use of the property 3. Communication (publication) of the falsehoods to third parties

Which of the following is the best illustration of assumption of risk? a. Sandy drives a cement mixer. Rod is a construction worker. While unloading cement from the truck, Sandy notices that Rod is standing near a large hole behind him. She says nothing, and, as Rod steps back to avoid the flowing cement, he falls into the hole. b. Alameda is a litigation paralegal. She drafts a will for a client and gives it to her supervising attorney, Lyle, to review. Lyle fails to review the will. The will was written improperly, and the client sues for legal malpractice. c. Meryl works in a pastry shop. She notices that there is an electrical short in one of the machines she is using. Rather than shutting the machine off, Meryl continues to use it and is electrocuted. d. Dean is a reference librarian. As he is researching a patron's question, a bookshelf falls on him and injures him.

c. Meryl works in a pastry shop. She notices that there is an electrical short in one of the machines she is using. Rather than shutting the machine off, Meryl continues to use it and is electrocuted. Assumption of risk involves (1) the plaintiff 's voluntary assumption of a known risk, (2) with a full appreciation of the dangers involved in facing that risk.

Which of the following is true regarding negligence defenses? a. Negligence defenses can be used by both the plaintiff and the defendant. b. Negligence defenses can be applied to the plaintiff's claims of intentional action. c. Once a plaintiff alleges the defendant's negligence, both parties' failure to be careful may be at issue. d. None of these choices

c. Once a plaintiff alleges the defendant's negligence, both parties' failure to be careful may be at issue. Once a plaintiff alleges the defendant's negligence, both parties' failure to be careful may be at issue.

Which of the following is an element of battery but not an element of assault? a. Fear or apprehension b. Consent c. Physical contact d. No physical contact

c. Physical contact contact converts an assault into a battery. Assault is distinguishable from battery in that no touching is required for assault.

A hospital would not be held liable for the negligent actions of which of the following? a. Nurse b. Receptionist c. Physician working as an independent contractor d. None of these choices.

c. Physician working as an independent contractor Persons hiring independent contractors are not vicariously liable for the independent contractors' negligence.

Which of the following is NOT an element of comparative negligence? a. The plaintiff's negligence contributed to his or her own injuries. b. The percentage of the plaintiff's negligence that contributed to his or her injuries is calculated. c. The plaintiff may be prevented from recovering anything. d. The percentage of the defendant's negligence that produced the plaintiff's injuries is calculated.

c. The plaintiff may be prevented from recovering anything. The comparative negligence defense has three elements: 1. The plaintiff 's negligence contributed to his or her own injuries. 2. Calculation of the percentage of the plaintiff 's negligence that contributed to his or her injuries. 3. Calculation of the percentage of the defendant's negligence that produced the plaintiff 's injuries.

Which of the following is not an element of res ipsa loquitur? a. The defendant must have been in exclusive control of the object or action that produced the plaintiff's injury. b. The plaintiff's injury must be of a type that ordinarily would not have happened unless negligence were involved. c. The plaintiff must be in a better position to prove his or her lack of negligence than the defendant is to prove the plaintiff's negligence. d. The plaintiff cannot have contributed to his or her own injuries.

c. The plaintiff must be in a better position to prove his or her lack of negligence than the defendant is to prove the plaintiff's negligence. Court opinions often quote the following elements of res ipsa loquitur: 1. The defendant (or his or her employee[s]) must have been in exclusive control of the object or action that produced the plaintiff 's injury. 2. The plaintiff 's injury must be of a type that ordinarily would not have happened unless negligence were involved. 3. The defendant must be in a better position to prove his or her lack of negligence than the plaintiff is to prove the defendant's negligence.

Respondeat superior is normally associated with which type of negligence case?

c. Vicarious liability vicarious liability | Legal responsibility for the acts of another person because of some special relationship with that person; for example, the liability of an employer for certain acts of an employee.

In malpractice cases, the standard of care is commonly defined by

c. a national standard. National Standard of Care. The standard for experts is now a national standard in most jurisdictions. This means that a pediatrician's actions in one town, for example, are measured against the standard of care pediatricians would apply throughout the country, rather than in a particular area.

Treyvon walked into a construction site after working hours. He slipped and fell into an open pit, injuring himself. For purposes of premises liability, Treyvon would be classified as

c. a trespasser. Occupiers are individuals who do not own but who do use real estate; this includes tenants (lessees).

Assumption of risk includes all of the following elements EXCEPT a. the plaintiff's voluntary assumption of a known risk. b. full appreciation of the dangers involved. c. breach of duty. d. All of these choices.

c. breach of duty. Assumption of risk involves (1) the plaintiff 's voluntary assumption of a known risk, (2) with a full appreciation of the dangers involved in facing that risk.

Patient dumping is defined as

c. denial of treatment to emergency patients or women in labor. patient dumping | Denial of treatment to emergency patients or women in labor, or transferring them to another hospital while in an unstable condition.

Damages for the loss of the enjoyment of life, or value of life, are called

c. hedonic damages. Damages for the loss of the enjoyment of life, or value of life, are called hedonic damages

There are far more _____ cases than _____ cases.

c. negligence; intentional tort Negligence cases are far more common than intentional tort cases in the practice of law.

Discovery is the stage in a civil proceeding where the

c. parties exchange information and narrow the issues. Discovery—the exchange of information and narrowing of the issues in dispute in a case—can be either a simple process or a long and drawn-out one that takes years and involves millions of documents.

In vicarious liability, the ______ is liable for the torts of the _______.

c. principal; agent Vicarious liability is the liability of one person, called the principal, for the tortious conduct of another, subordinate individual, called the agent, who was acting on the principal's behalf.

The period within which one must file a negligence lawsuit is commonly called

c. statute of limitations.

The pretrial conference occurs after

c. the complaint has been served. Generally, there is a pretrial conference after the initial summons and com-plaint are served. During the conference, the judge will set up a schedule to complete discovery, and encourage the parties to settle the case before trial.

Substantial factor analysis states that

c. the tortfeasor is liable for injuries to the victim when the tortfeasor's actions were a substantial factor in producing the harm. An alternative causation theory, substantial factor analysis, states that each defendant is liable for the plaintiff 's injuries if each defendant was a substantial factor in producing the harm.

Spoliation of evidence is

c. when evidence relevant to a legal proceeding is deliberately withheld, lost, or destroyed. spoliation of evidence | Deliberate withholding, hiding, or destruction of evidence relevant to a legal proceeding. This is a new tort.

The first pleading filed in a civil lawsuit, which contains the statement of wrong done to the plaintiff, is called the

complaint

Which of the following is not associated with the scope of employment? a. Coming and going rule b. Frolic and detour rule c. Respondeat superior d. All of the above are associated with scope of employment.

d. All of the above are associated with scope of employment. Employers are usually not vicariously liable for the negligence of their employees while the employees are coming to or going from work. This is called the coming and going rule. frolic and detour rule | Conduct of an employee that falls outside of the scope of employment that is purely for the benefit of said employee. respondeat superior | (Latin) "Let the master answer." Describes the principle that an employer is responsible for most harm caused by an employee acting within the scope of employment. In such a case, the employer is said to have vicarious liability.

If the defendant can show that at least one of the four elements needed for negligence case is missing, he or she should a. use a demurrer. b. file a motion for summary judgment. c. file a motion to dismiss. d. All of these choices.

d. All of these choices. After the pleadings are served, a defendant can use a demurrer, file a motion for summary judgment, or file a motion to dismiss. The defendant would file these to show that one or more of the four elements needed for a negligence case are missing.

Commercial disparagement includes which of the following? a. Disparagement of goods b. Disparagement of services c. Disparagement of business d. All of these choices.

d. All of these choices. Commercial disparagement can be divided into three elements: 1. False statements about an individual's goods, services, or business 2. Intent to injure the victim's ability to use goods, furnish services, or conduct business 3. Communication (publication) to third parties

Publication is an element of which intentional tort? a. Slander b. Libel c. Defamation d. All of these choices.

d. All of these choices. Courts often refer to this communication element as publication. Publication of the defamatory information must injure the victim's reputation in the community. The elements can be outlined as follows: 1. Written (libel) or oral (slander) statement 2. False and defamatory statement about a person 3. Tortfeasor's communication of the statement to a third party 4. Harm to the victim's reputation in the community

Emotional distress includes which of the following? a. Fright b. Grief c. Embarrassment d. All of these choices.

d. All of these choices. Emotional distress consists of mental anguish caused by a tortfeasor. This condition includes fright, anxiety, shock, grief, mental suffering, shame, embarrassment, and emotional disturbance.

Emotional distress is synonymous with a. mental anguish. b. shock. c. fright. d. All of these choices.

d. All of these choices. Emotional distress consists of mental anguish caused by a tortfeasor. This condition includes fright, anxiety, shock, grief, mental suffering, shame, embarrassment, and emotional disturbance.

A lawsuit can be settled: a. after the complaint is served. b. before the answer is served. c. during discovery. d. All of these choices.

d. All of these choices. Generally, there is a pretrial conference after the initial summons and complaint are served. During the conference, the judge will set up a schedule to complete discovery, and encourage the parties to settle the case before trial.

Which of the following statements is true regarding malicious prosecution? a. The complainant's criminal complaint must lack probable cause. b. The complainant must have filed frivolous criminal charges with malicious intent. c. The accused must be acquitted of the criminal charges or otherwise have them disposed of. d. All of these choices.

d. All of these choices. Malicious prosecution arises when a private citizen files with the prosecutor a groundless criminal complaint against another person (who is named as the defendant in the subsequent criminal proceeding). This tort is comprised of the following elements: 1. Groundless criminal prosecution against the accused without probable cause 2. The complainant's malice in filing the spurious charges 3. The accused's acquittal from, or dismissal of, the criminal charges 4. Injury to the accused as a result of the prosecution

After the plaintiff has made a prima facie case, the defendant must counter with his or her own evidence. This is called the defendant's a. burden of rejoinder. b. burden of persuasion. c. rebuttal. d. All of these choices.

d. All of these choices. Once the plaintiff has made a prima facie case (meaning that proof has been established by or beyond a preponderance), the burden shifts to the defendant, who must then counter the plaintiff 's evidence with proof of his or her own. This is sometimes called the defendant's burden of rejoinder, burden of persuasion, or rebuttal.

The public policy objectives served by tort law include a. protecting persons and property from unjust injury. b. allocating losses among different participants in the social arena. c. encouraging minimum standards of social conduct. d. All of these choices.

d. All of these choices. Public Policy Objectives in Tort Law. Like every aspect of our legal system, there are several purposes underlying tort principles. These include (1) protecting persons and property from unjust injury by providing legally enforceable rights; (2) compensating victims by holding accountable those persons responsible for causing such harms; (3) encouraging minimum standards of social conduct among society's members; (4) deterring violations of those standards of conduct; and (5) allocating losses among different participants in the social arena.

Transferred intent a. protects people from misdirected physical contact. b. is a legal fiction. c. holds the tortfeasor responsible for consequences of his or her actions even though the tortfeasor did not intend to hit the third person involved. d. All of these choices.

d. All of these choices. Transferred intent is an effective tool for protecting persons from misdirected physical contacts. It holds the tortfeasor accountable for the consequences of his or her actions even though, strictly speaking, he or she did not desire to hit the third person involved.

Which of the following statements is true with regard to toxic trespass? a. Trespass to land occurs when toxic substances enter upon another's property. b. The elements for toxic trespass are the same as those for trespass to land. c. The intent to trespass can be implied. d. All of these choices.

d. All of these choices. Trespass to land occurs when toxic substances enter upon another's property. The trespass elements remain the same: 1. Unauthorized entry upon another person's real estate 2. Tortfeasor's intent to enter without consent 3. Tortfeasor's actions interfering with the landowner's exclusive right to use the land (possession)In the case of toxic substances, the unauthorized entry is seepage or accumulation of the hazardous material on the victim's land. Few owners consent to having toxins placed over, upon, or under their realty. Most people want such materials to be taken as far away from them as possible. The tortfeasor's intent to enter without permission may be implied from the disposal method used.

An independent contractor is distinguishable from an employee because a. an independent contractor supplies his or her own tools. b. an employer does not deduct social security taxes for an independent contractor. c. an employer does not control how an independent contractor performs work. d. All of these choices.

d. All of these choices. Whereas an employer must deduct social security and withholding taxes from an employee's pay, this is not required of an employer for an independent contractor. (See Internal Revenue Ruling 87-41.) Independent contractors must use their own tools, and they control the way in which a job is performed.

Sexual harassment consists of a. unwelcome sexual advances. b. verbal conduct of a sexual nature. c. physical conduct of a sexual nature. d. All of these choices.

d. All of these choices. sexual harassment | Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when this conduct affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sheri runs a radiator repair service. Owen is one of her customers. Sheri repaired the cracked radiator in Owen's 1963 Chevrolet Impala automobile. Owen became upset when one of Sheri's employees spoke rudely to him when he came to pick up the vehicle. The next day, Owen telephoned a local radio call-in program called This Is Your Opinion Out There. Owen told the disc jockey that Sheri's business was "low class," that Sheri "thought she could do better auto repair work than a man," and that he'd never again do business with a "brainless broad doing a man's job." He managed also to say that Sheri "slept around with customers" before the radio station cut him off. Which type(s) of intentional tort(s), if any, has Owen committed against Sheri? a. Defamation (slander) b. Invasion of privacy (false light in the public eye) c. Intentional infliction of emotional distress d. All of these choices.

d. All of these choices. slander | Oral defamation. The speaking of false words that injure another person's reputation, business, or property rights. Invasion of privacy by placing a person in a false light in the public eye happens if the tortfeasor publicly attributes to that individual false opinions, statements, or actions.

Liam parked his car on a hill. He forgot to engage the parking brake. The car slipped out of gear, rolled down the hill, and crashed into Wen Ting's restaurant, injuring three customers. To whom did Liam owe a duty of reasonable care? a. Himself b. Wen Ting c. The three customers d. Both Wen Ting and the three customers

d. Both Wen Ting and the three customers In negligence, the duty of due (reasonable) care is the responsibility to act reason-ably so as to avoid injuring others.

Which of the following is not an element of the analytical framework known as IRAC? a. Issue b. Rules of law c. Application of the rules to the facts d. Cause

d. Cause The analytical framework for hypotheticals sequentially investigates four general elements of a problem: the issue, rules of law, application of the rules to the facts, and conclusions (IRAC).

Which of the following is the best illustration of last clear chance? a. Monica runs a drill press. She wears long-sleeved shirts and gets one sleeve caught on the drill bit. As a result, her arm is badly lacerated. b. Tyra is a bank employee responsible for verifying check signatures against signature cards. She fails to verify the signature on one of Ben's checks, which had been stolen and bore his forged signature. The bank cashes the check and charges Ben's account. c. Austin is a chemist. While mixing chemicals, he combines a rare potassium isotope with water, causing an explosion that destroys the laboratory. d. Manny is a door-to-door salesperson. He approaches Jackson's house, which has a defective porch roof. Jackson was aware of this danger. Manny sees the roof sagging but continues onto the porch. The roof collapses, injuring Manny.

d. Manny is a door-to-door salesperson. He approaches Jackson's house, which has a defective porch roof. Jackson was aware of this danger. Manny sees the roof sagging but continues onto the porch. The roof collapses, injuring Manny. last clear chance doctrine | Even though the plaintiff was at fault in causing his or her own injuries, the defendant had the last opportunity to avert harm and failed to do so; therefore, the plaintiff can still recover.

Which of the following is the best example of abuse of process? a. Angel files a small-claims lawsuit against her next-door neighbor, who keeps dumping trash in Angel's backyard. b. Jim files an unfounded criminal complaint against Francesco with the county prosecutor. c. Lisa files a lawsuit in U.S. District Court against her employer, alleging sexual discrimination. d. Murphy files a lien against a customer who has agreed to pay his debt over a period of several months, and all payments have been made (and accepted by Murphy) on time to date.

d. Murphy files a lien against a customer who has agreed to pay his debt over a period of several months, and all payments have been made (and accepted by Murphy) on time to date. The elements of abuse of process are as follows: 1. Misuse of a legal proceeding, or threat of such misuse 2. Misuse to achieve unlawful objectives 3. Injury to the victim as a result of the misuse

Jun Li discovered someone lurking around the back door of his house early one morning. He shouted out the window to the person, "Don't move, I see you!" and "The police are coming!" The person stood, looking puzzled, and then bent back down to look at Jun Li's electric meter. The person worked as a meter reader for the electric company. The meter reader then stood up and walked slowly to his truck. Jun Li shouted after him, "I got your license plate! The cops will track you down!" Which intentional tort(s), if any, has Jun Li committed against the meter reader? a. Defamation b. False imprisonment c. Assault d. No intentional torts were committed.

d. No intentional torts were committed.

A landowner's exclusive right to use his or her real estate is called a. dispossession. b. chattel. c. livery of seisin. d. None of these choices

d. None of these choices exclusive right of possession | A landowner's right to use his or her property without interference from other persons.

In a summary jury trial, all of the following are true except a. the parties decide in advance if the decision is binding. b. the parties can use the jury's advice to aid in settlement negotiations. c. the attorneys are not required to follow the rules of evidence and procedure followed in a court trial. d. None of these choices.

d. None of these choices. In complex cases, the two sides may present important facts and evidence to a small jury, an action referred to as a summary jury trial. Either the parties will agree in advance to be bound by the decision or, based on their interview with the jury, to use the jury's advice to aid in settlement negotiations. The attorneys are not required to follow the strict rules of evidence and procedure that are followed in a court trial.

Which of the following is not one of the basic elements that must be proved in a medical malpractice case? a. Existence of a doctor/patient relationship b. Breach of duty c. Causation d. None of these choices.

d. None of these choices. To establish a medical malpractice case, the basic four elements of a negligence claim must be proved. First, a duty must be owed. To demonstrate this, it must be shown that there was a physician/patient relationship. Next, there must be a breach of duty, which is proved by showing that the physician affirmatively did something or neglected to do something and fell below the standard of care owed to the patient. Then, the element of causation is needed to show that it was the physician's acts or omissions that actually caused the harm the plaintiff suffered. Last, there must be damages—some sort of physical or mental injury must have resulted from the medical treatment.

Which of the following is NOT one of the elements included in trespass to chattel? a. Unauthorized possession or interference with the use of another's chattel b. Intent to deprive or interfere the owner's possession or use of personal property c. Owner's nonconsent to the tortfeasor's possession and use of the chattel d. None of these choices.

d. None of these choices. Trespass to chattel has elements similar to those of trespass to land: 1. Unauthorized possession of, or interference with the use of, another individual's personal property 2. Intent to deprive (or interfere with) the owner's possession or exclusive use of his or her chattel

Last clear chance can best be defined as a. consent. b. contributory negligence. c. comparative negligence. d. None of these choices.

d. None of these choices. When a defendant uses the contributory negligence defense against a plaintiff, the plaintiff has a responsive weapon to defeat this defense. This is called the last clear chance doctrine and is a rebuttal to a contributory negligence defense.

Assault is best defined as a. battery. b. unconsented physical contact. c. a breach of the king's peace. d. None of these choices.

d. None of these choices. contact converts an assault into a battery. Assault is distinguishable from battery in that no touching is required for assault.

In a negligence lawsuit, who usually decides how the reasonable person would have acted?

d. The trier-of-fact The trier-of-fact in a negligence lawsuit determines whether the defendant failed to act as the reasonable person would have behaved in a specific case.

When a defendant brings a claim against the plaintiff, this is called

d. a counter-claim.

Breach of duty is defined as

d. actions that fall below a certain standard of care. A breach of duty is when a person's actions fall below a certain standard of care

Comparative negligence balancing, typically measured in percentages of negligence, is sometimes called

d. culpability factoring. This comparative negligence balancing is typically measured in percentages of negligence. This is sometimes called culpability factoring (liability apportionment).

All of the following are intentional torts except a. battery. b. fraud. c. defamation. d. negligence.

d. negligence.