chapter 9

Beryl is injured in a car accident. The jury finds her 30% liable and awards $100,000 in damages. The suit takes place in a comparative negligence jurisdiction. How much money will she receive?

$70,000 because of comparative neg., she still gets money, but 30% is deducted

Which of the following are subject to strict liability?

1. A tiger kept in a secure cage, surrounded by two fences in a residential community 2. A brand new toaster that explodes in a homeowner's face 3. A facility that stores toxic chemicals

Which of the following are the five main factors examined by a court in a risk-utility test?

1. the likelihood that such a danger will occur 2. the mechanical feasibility of a safer alternative design 3. the adverse consequences of an alternative design 4. the gravity or seriousness of danger 5. the value of the product

In a comparative negligence state, if the plaintiff in a negligence lawsuit is found to be 30 percent negligent, the plaintiff would recover

70 percent of the damages

The judge in Palsgraf based his decision on the fact that

harm to the plaintiff was not foreseeable

Under the single recovery principle, the court must decide at trial the full extent of

present and future damages why?? because the single recovery principle bars the plaintiff from returning to court years later and demanding compensation for newly arisen ailments. Courts must decide at trial the full extent of present and future damages.

Which of the following acts resulting in injury would be negligence per se?

selling to a 14-year-old

duty of due care

the defendant has a legal responsibility to the plaintiff

factual cause

the defendant's conduct actually caused the injury

A sports fan, injured by a hockey puck that flew into the stands during an NHL game, would be subject to the defense of assumption of the risk in a suit to recover for her injuries

true

Kenneth was exposed to radiation on his job in an environmental cleanup. In a lawsuit against his employer, the court must decide the full extent of both present and future damages rather than allowing Kenneth to return to court years later if medical problems develop at that time.

true

Most states recognize some form of comparative negligence.

true

Res ipsa loquitor shifts the burden of proof from the plaintiff to the defendant.

true

Res ipsa loquitur shifts the burden of proof from the plaintiff to the defendant.

true

Aurelia has emergency major heart surgery at the best hospital in town. The next week, she goes to her doctor complaining of an acute pain in her chest. The doctor performs an x-ray and finds that there is medical sponge inside Aurelia's chest. Medical sponges are tools used during surgery and should never be left inside the patient. Because Aurelia was unconscious during the surgery, she does not know who left the sponge in her chest or how exactly it came to be placed there. Can Aurelia still win a negligence case against the hospital?

yes, under the doctrine of res ipsa loquitur

As it applies to landowners, which of the following statements regarding liability to a licensee is correct?

The landowner is liable to a licensee for injuries caused by hidden dangers only

Powers drove a truck that his employer leased from Big Trucks. After Big repeatedly failed to respond to Powers' requests to fix the strap used to close the truck's rear door, Powers replaced the strap with a nylon rope. Later, this nylon rope broke, causing Powers to fall and break his back. When Powers sued Big, what was the result?

big is liable because it knew about the problem with the strap and did not fix it

Most states adhere to the theory of because the earlier version of the rule was considered unreasonable.

comparative negligence

Under __________, a plaintiff may generally recover even if she is partially responsible. Under _________, if the plaintiff is even slightly negligent, she recovers nothing.

comparative negligence contributory negligence

Negligence could be called an "unintentional" tort because it _________.

concerns harm that arises by accident

If a defendant is engaging in conduct that is obviously dangerous, but his actions harm a plaintiff in a way that is not foreseeable, can the plaintiff still recover?

NO, because the conduct was not the proximate cause of the injury

For a thrill, Isabel goes to a water park with steep waterslides. While waiting in line for the waterslide, she is bitten by a raccoon. Will the water park be able to avoid liability on the basis of the assumption of risk doctrine?

NO, Isabel did not assume the risk of getting bitten by an animal

If an armed gunman comes into a book store and shoots all the customers, can the customers recover against the bookstore owner?

NO, because generally there is no obligation to protect against the wrong-doing of a third person

Under what principle is a plaintiff barred from recovery when he voluntarily puts himself in a situation that has an obvious danger?

assumption of risk

Alonzo decides to have a yard sale to sell some of his personal items. At the sale, Alonzo sells Ralph a big screen television for $40. Ralph is very pleased with the deal until an electrical issue in the television causes the television to catch fire two days later. The resulting fire burns Ralph's house to the ground. Ralph sues Alonzo alleging strict liability. Why does Ralph lose his suit?

because Alonzo was not in the business of selling TVs In order for a defendant to be liable to a plaintiff for selling a defective product, the defendant must be in the business of selling such a product.

While hunting, Roger enters Adele's property without permission and is injured by falling into a ditch that was obscured by the underbrush. Under the common law, Adele is liable for Roger's injuries.

false

Many states now have "dram shop acts" that _________.

impose liability on bars that sell alcohol to intoxicated individuals who later cause harm

Bob, a weak swimmer, ignored warning signs in a recreational swimming area and went into deep water. He soon grew tired and realized that he could not make it back to shore. Seeing Kelly, he cried out for help. Kelly, however, ignored the pleas. Bob was finally saved by Dorothy, but suffered brain damage from being submerged during the ordeal. Bob now sues Kelly for negligence for failing to try to save him. Bob will:

lose because Kelly had no legal duty to rescue him

Phillip was waiting for a bus at a bus stop. Across the street and down the block, a mechanic negligently overinflated a tire he was intending to put onto Marsha's pickup truck. The exploding tire injured Marsha and frightened a neighborhood dog, which ran down the street and knocked Phillip down, injuring his knee. Phillip sued the mechanic. In applying the Palsgraf v. Long Island Railroad Co. decision to this case, Phillip would

lose because, although the mechanic's conduct was negligent toward Marsha, it was not a wrong in relation to Phillip, who was far away. The mechanic could not have foreseen injury to Phillip and therefore had no duty to him.

If the legislature passes a statute creating an elevated duty of care for a particular activity in order to protect a particular subset of the population, any defendant who violates this statute is most likely guilty of .

negligence per se

Cole is severely injured when he falls down some wet stairs at a bar. The jury finds that he was 5% responsible for his accident and awards $100,000 in damages. The suit takes place in a contributory negligence jurisdiction. How much money will Cole receive?

no money if it is even .00001% your fault in a contributory neg., then you don't get any $$$$

Harris walked onto some train tracks, ignoring a yellow warning line painted on the station platform, shouts from concerned onlookers, and the ringing bells and flashing lights signaling the approach of an express train. The train killed Harris, and his widow sued the railroad arguing that its negligence caused her husband's death. Will she win?

no, Harris' own actions were the factual cause of harm. The train station provided safety measures that a reasonable person would pay attention to that Harris ignored

Irving was a notary public who prepared income tax returns for Mark. Irving agreed to draft a will for Mark, leaving all of the property to Mark's sister, Sonja. When Mark died, the court refused to uphold the will because it was improperly drafted. As a result, Sonja inherits only one eighth of the estate and Sonja sued Irving. Irving defended on the grounds that he had no duty of due care to Sonja because he only had dealings with Mark. Is Irving right?

no, Irving had a duty of care because it was foreseeable that the failure to properly draft the will would cause injury to Sonja

When Mary Louise has an accident, the court awards her $50,000 for future lost wages. It turns out she is unable to work for much longer than her doctor anticipated, and her lost wages amount to $225,000. Can she sue the defendant again for the unforeseen losses?

no, because of the single recovery principle

A new truck, manufactured by General Motors Corp. (GMC), had a defective alternator that caused it to stall on a busy highway. The driver set up emergency flares around the stalled truck, but congestion on the highway made them difficult to see. Davis did not see the flares, drove his car into the back of the stalled truck, and was killed by the impact. His widow sues GMC. GMC moved for summary judgment, alleging (1) no duty to Davis, (2) no factual causation, and (3) no foreseeable harm. Should summary judgment be granted?

no, because there was factual cause and the injury was foreseeable

In a comparative negligence jurisdiction, the relative negligence of the plaintiff and the defendant will be determined by

the jury

damages

the plaintiff has actually been hurt or has actually suffered measurable loss

Jasper buys a can of Zaps bug spray. The first time Jasper sprays some on his arm, the can explodes, causing deep cuts on his face that require surgery. Jasper sues Zaps. Which of the following facts, if true, would most help Zaps' defense?

the shop that sold Jasper the bug spray had kept the bug spray in an extremely hot storage room, and the extreme temperature is what made the can explode

If a plaintiff fails to prove proximate causation, even though the defendant's conduct was the factual cause of her injury it probably means that

there was a superseding cause reason: to establish the causation element of a negligence claim, the plaintiff has to show that the defendant's conduct was both the actual cause and the proximate cause of her injury. If the plaintiff fails to show that the conduct was the proximate cause of her injury, it probably means that her injury was the result of a superseding cause.

Wayne worked in an office. He had no criminal record, had never had a complaint made against him about his work or his conduct, and had been a faithful employee for nearly 20 years. One day, Wayne followed his supervisor to his home and fatally shot him. The estate of the supervisor sued the company, claiming it should have been aware of Wayne's growing frustration with work. The company's best defense will be that

there was no way to foresee that the incident would happen

A plaintiff sues in negligence but has no direct proof that the defendant behaved unreasonably. Which of the following is most likely to help the plaintiff?

Res ipsa loquitur

Jeremy goes to a professional baseball game, and has priority seating very close to the field. A foul ball flies into the stands and strikes Jeremy, shattering his nose. If Jeremy sues the baseball league, what will the result be?

Jeremy will lose, because he assumed the risk by going to the game.

Kyle was eating clam chowder soup in a restaurant when a very small piece of bone lodged in his throat. Fortunately, he was able to remove the bone with his fingers. However, he was upset by the incident and sued the restaurant for negligence. What is the most likely result in this case?

Kyle will not collect any damages since he did not sustain any damages

One morning, Miles accidentally dropped a thumbtack on the chair of the office manager where he worked. The office manager sat on the tack and two days later, was hospitalized with an infection caused by the tack. Which of the following is correct?

Miles actions were negligent

Which of the following statements regarding a negligence case is correct?

a plaintiff must show that the defendant's act was both the factual cause of her injury as well as a foreseeable injury

In terms of duty of care, while on the job a person must act as __________.

a reasonable person in her profession

Raquel is speeding in her car through a busy town center when she veers off the road to avoid a cat and plows into a small newspaper stand. The stand flies into the air and smashes through the glass windows of a nearby yoga studio, where it startles Adam, a yoga student, and sends him flying into a set of lighted candles. As a result, Adam suffers a serious burn. Adam sues Raquel. What result?

adam will lose because Raquel's conduct was not the proximate cause of his injury

Curious to see its worth, Irene takes a beautiful oil painting that she inherited from her grandmother to Eleanor, a respected art appraiser. Eleanor tells Irene the artwork is a worthless piece of junk, so Irene sells the painting to Aziz at a yard sale for $50. The following week, Irene finds out that Aziz sold the painting for $12 million dollars at auction, after an appraiser at the auction house determined it is the work of a famous painter named Thomas Gainsborough. Furious, Irene sues Eleanor. What result?

eleanor will be liable if Irene can prove that a reasonable art appraiser would recognize the painting as being valuable

A defendant set off fireworks at a fully-licensed Fourth of July show. The result of the activity caused harm to the plaintiff. In order for the plaintiff to win a case of negligence, he or she need only prove that it was foreseeable that the defendant's conduct might cause harm.

false

Which of the following are examples of what a plaintiff does NOT have to prove when he alleges that the defendant was engaged in an ultrahazardous activity?

1. duty 2. breach 3. foreseeable harm

Which of the following are elements a plaintiff must prove in order to win a negligence case?

1. factual cause 2. breach 3. damages 4. duty of care 5. proximity cause

Which of the following are the three most common claims made by plaintiffs in a product liability case?

1. negligent manufacture 2. negligent design 3. failure to warn

Which of the following are criteria for a court to apply res ipsa loquitor? res ipsa loquitur: the principle that the occurrence of an accident implies negligence

1. the defendant must have had exclusive control of the thing that caused the harm 2. the plaintiff had no role in causing the harm 3. the harm normally would not have occurred without negligence

Farmer Jake is extremely distressed when he goes to his state-of-the-art chicken facility one morning and finds that all 300 of his prized chickens have died overnight. A veterinarian determines that the chickens have all died of heart attacks. Video surveillance reveals that the chickens all went into distress and died around 4:15 am. Farmer Jake knows that Dahlia's Dynamite Co. had been hired to do some underground blasting in the area that morning. Farmer Jake sues Dahlia's. What result?

Farmer Jake will win, because the court will hold Dahlia strictly liable

A customer in a restaurant would be considered ________ to whom the restaurant owner owes a duty ________.

an invitee; of reasonable care

***Bunny gets into a terrible car accident while driving her brand new sedan. Because Bunny is severely overweight, the driver's seat collapses backwards during the accident and causes her further injury. The car manufacturer knew that this particular model had a risk of collapsing in accidents if the driver or passengers were considerably overweight. Bunny's best chance of recovery against the car manufacturer is a claim for

failure to warn

A defendant who exercised extreme care while engaged in an ultrahazardous activity will not be held liable for any damage that results.

false

A landowner's highest duty is owed to licensees.

false

If a defendant fails to prove one element of his negligence claim he can still win the case.

false

Palsgraf v. Long Island Railroad Co. addressed the issue of furnishing alcohol to minors.

false

The doctrine of contributory negligence is followed in most states.

false

To win a strict liability claim involving a defective product, the plaintiff must have bought the product directly from the defendant.

false

Tort issues are firmly ingrained in law and do not change.

false

In determining the extent of a person's duty to other people, the court generally applies a test of ___________.

foreseeability

Marcello is driving negligently and rear-ends Lisa. Lisa sues, claiming that her doctor said the collision may result in her suffering from severe back pain in a few years. If Lisa wins her case it most likely because she persuaded that court that she suffered harm that is __________ rather than _________.

genuine speculative

Lucas is hosting Thorben and several other dear friends at a housewarming party at his new home. During the tour of the new place, Thorben plunges through a trap door partially concealed by the living room carpet and falls 20 feet into the concrete basement below. Thorben breaks both legs and sues Lucas. Which of the following arguments will be Lucas' best defense?

he did not know about the trap door

Landowners have a _________ duty to invitees than they do to licensees. A(n) __________ is someone who has a right to be on the property because it is a public place or a business. A(n) __________ is someone on the land for her own purposes but with the owner's permission. A(n) _________ is considered a licensee whereas a(n) _________ is an invitee.

higher invitee licensee social guest store customer

Under the consumer expectation test, the court will find a product manufacturer liable for defective design if

it is less than safe than a reasonable customer would expect

Kelley went ice skating on a neighbor's pond, but she fell through a thin area into icy waters. Kelley did not have permission to be on the property, and the neighbor did not even know that she was there. Is the neighbor liable for Kelley's injuries?

it may depend on Kelley's age

proximate cause

it was foreseeable that conduct like the defendant's might cause this type of harm

Under a state law, a dog owner is absolutely liable to any person who is injured by the dog. This is an example of

strict liability

breach

the defendant breached her duty of care or failed to meet her legal obligations

If a court applies res ipsa loquitur

the defendant has the burden of proving he or she is not liable

Which of the following represents a landowner's lowest liability?

trespassing adult

A person at work has a heightened duty of care

true

Lindsay decides to go skydiving for the first time and chooses a company with an excellent reputation. On the day of the dive, Lindsay slips on some oil on the floor of the company's airplane hangar and fractures her elbow. Will Lindsay win a negligence suit against the skydiving company?

yes, because Lindsay is an invitee of the skydiving company