Exam 2 Prep

The bases for an action in strict liability that are set forth in the Restatement (Second) of Torts Section 402A can be summarized by the following six requirements. The product must have been in a ___ when the defendant sold it. The defendant must normally be engaged in the ___ (or otherwise distributing) that product. The product must be ___ to the user or consumer because of its defective condition (in most states). The plaintiff must incur ___ to self or property by use or consumption of the product. The defective condition must be the ___ of the injury or damage. The goods must not have been ___ from the time the product was sold to the time the injury was sustained.

- Defective condition - Business of selling - Unreasonably dangerous - Physical harm - Proximate and actual cause - Substantially changed

Defamation (Libel or Slander):

A false statement of fact, not made under privilege, that is communicated to a third person and that causes damage to a person's reputation. For public figures, the plaintiff must also prove that the statement was made with actual malice.

Joe could not recover for the intentional infliction of emotional distress if his neighbor, Mike, sent him a text message saying that Joe's mother was killed in a car accident if:

Joe knew it was untrue

Transnational Corporation and United Shipping, Inc., agree to a contract that includes an arbitration clause. If a dispute arises, a court having jurisdiction may a. order a party to submit to arbitration b. order an arbitrator to rule in a particular way. c. monitor any arbitration until it concludes d. order a party to bring the dispute to court.

a. order a party to submit to arbitration

Nora is charged with the commission of a crime. For the conviction, most crime require a) only a specified state of mind or intent. b) only the performance of a prohibited act. c) a specified state of mind and performance of a prohibited act. d) none of the above.

c) a specified state of mind and performance of a prohibited act.

Pam believes that Quinn is about to hit her. To prevent harmful contact in the situation, Pam may use a) any force b) any force, except force that is likely to cause death c) force that is reasonably necessary d) no force

c) force that is reasonably necessary

Owen signs Pat's name, without her consent, to the back of a check payable to Owen. This is a) burglary b) embezzlement c) forgery d) larceny

c) forgery

Marshall is working on a contract with a U.S. company involving the manufacturing of goods in China, and wants to ensure that U.S. law applies in the event of a dispute. He should include which of the following clauses in the contract? a. Forum selection clause. b. International treaty clause. c. Choice of law clause. d. Arbitration clause.

c. Choice of law clause.

A Maryland state court can exercise jurisdiction over National Insurance Corporation, an out-of-state company, if the firm has a.no contacts with the state b.medium contacts with the state c.minimum contacts with the state. d.maximum contacts with the state

c. minimum contacts with the state.

Donatello files a suit against Erasmus. Before going to trial, the parties meet, with their attorneys to represent them, to try to resolve their dispute without the involvement of a third party. This is a. arbitration b. mediation c. negotiation d. not a legitimate form of dispute resolution

c. negotiation

Tina decides to take her claim against her Internet service provider to FairDeal.com, a private, online dispute resolution provider. This limits her access to the court system: a. only as to this claim. b. for a period of sixty days. c. not at all. d. entirely, as to this and all other claims against her Internet service provider.

c. not at all.

Carl wrongfully takes a box from Delta, Inc., shipping container, puts it in his truck, and drives away. This is a) burglary b) embezzlement c) forgery d) larceny

d) larceny

Online company (OC) is an internet service provider. Publicity Unlimited, Inc. (PU), spams OC's customers, some of whom then cancel OC's services. PU is most likely liable for a) battery b) conversion c) infliction of emotional distress d) trespass to personal property.

d) trespass to personal property

Moe, a wholesale dairy products salesperson, follows Nat, another wholesale dairy products salesperson, as he contacts his customers. Moe solicits each of Nat's customers. Moe is most likely liable for a) appropriation b) assault c) conversion d) wrongful interference with a business relationship.

d) wrongful interference with a business relationship

Robert, who lives in Ohio, files a lawsuit against Trading Post, a Washington company, in an Ohio state court. The Trading Post's only sales activity outside the state of Washington occurs via its Web site. According to the sliding-scale standard, the Ohio court can always exercise personal jurisdiction over out-of-state defendants based on Internet transactions if the court finds that the defendant has: a. received a national trademark and domain name for its Web site. b. interacted with at least three Ohio residents through its Web site. c. a commercial cyber presence. d. conducted substantial business with Ohio residents through its Web site.

d. conducted substantial business with Ohio residents through its Web site.

Miller signed an employment contract containing an arbitration clause stating that "any dispute" arising during employment must be resolved by binding arbitration. Two years later, after she was injured on the job and took leave to recover, she was fired. She filed a complaint for disability discrimination with the Equal Employment Opportunity Commission, which gave her a "right to sue" letter. She then filed suit in federal court against her employer for disability discrimination. The court: a. allowed the suit to proceed because federal rights take precedence over an arbitration clause in a contract. b. dismissed the suit because it must be filed in state court. c. allowed the suit to proceed because arbitration clauses cannot limit the ability to file suit in federal court, only in state court. d. dismissed the suit because of the arbitration agreement.

d. dismissed the suit because of the arbitration agreement.

Charles loses his breach-of-contract case against Micheletta in a Georgia state trial court. Charles appeals to the state court of appeals. Losing again, he files his next appeal with: a. a U.S. district court. b. a U.S. Circuit Court of Appeals. c. the United States Supreme Court. d. the Georgia Supreme Court.

d. the Georgia Supreme Court.

Stealing a computer program is larceny. True or False?

True

To commit an intentional tort, a person must intend the consequences of his or her act or know with substantial certainty that certain consequences will result. True or False?

True

Malicious prosecution occurs when a party files a suit out of malice, with or without probable cause. True or False?

False

Offering a bribe is only one element of the crime of bribery. True or False?

False

Puffery is fraud. True or False?

False

Receiving stolen goods is a crime only if the recipient knows the true owner. True or False?

False

The federal courts are superior to the state courts. True False

False

The reasonable person standard concerns itself with how a particular person would act and not with how an ordinarily prudent person should act.

False

You accidentally bump into someone on the sidewalk and that person falls but is unharmed. Nonetheless, that person usually can successfully sue you for damages.

False

To have standing to sue, the complaining party must have a sufficient stake in a matter to justify seeking relief through the court system. True False

True

Without establishing cause in fact, a plaintiff cannot succeed on a claim even if they prove proximate cause.

True

Is the act of purchasing a ticket implied consent or express consent? A. Implied consent because by purchasing a ticket to attend a baseball game, Taylor accepted the risk of being struck by an errant ball, an incidence which is inherent, indeed common to the game. B. Express consent because by purchasing a ticket Taylor clearly and unmistakably accepted the known risks incident to the game. C. Implied consent because the act of purchasing a ticket is the same as signing a waiver.

A. Implied consent because by purchasing a ticket to attend a baseball game, Taylor accepted the risk of being struck by an errant ball, an incidence which is inherent, indeed common to the game.

When a user or customer is injured because of fraudulent misrepresentation, the seller must have: A. Intended to induce the buyer's reliance on the misrepresentation. B. Not known the user would rely on his statements. C. Been negligent in its statements. D. Intended to cause injury.

A. Intended to induce the buyer's reliance on the misrepresentation.

Which of the following is NOT an element of negligence? A. Intent B. Breach C. Duty D. Damages E. Causation

A. Intent

Assumption of the risk: A. Is a viable defense in a product liability action. B. Can be used only if the plaintiff was more than 50% liable. C. Is not a viable defense in a product liability action. D. Is only a viable defense for a negligence action.

A. Is a viable defense in a product liability action.

In a strict product liability lawsuit, who has to show why or in what manner the product became defective? A. No one B. The plaintiff C. The defendant

A. No one

Trespass to land is defensible by: A. Obtaining permission for use of that land. B. Admitting fault. C. If the trespass does no harm. D. If the trespass was unintentional.

A. Obtaining permission for use of that land.

Which of the following acts normally does NOT constitute a conversion? A. Temporarily borrowing a friend's textbook and then returning it B. The taking of electronic records and data without the owner's permission C. Mistakenly believing that you are entitled to goods that are not your own

A. Temporarily borrowing a friend's textbook and then returning it

Privity of contract refers to: A. The relationship that exists between the parties to a contract. B. The relationship between the manufacturer and the seller of a dangerous product. C. The length of time a contract has existed. dD. The level of fraudulent misrepresentation in a contract.

A. The relationship that exists between the parties to a contract.

Battery:

An unexcused and harmful or offensive physical contact intentionally performed.

Would you classify a pitcher's actions as an intentional or an unintentional tort? Why? A. Unintentional, because the pitcher's conduct created no risk. B. Intentional, because the pitcher wanted to throw a fastball during warm-up. C. Unintentional, because the pitcher never wished to harm anyone during warm-up.

C. Unintentional, because the pitcher never wished to harm anyone during warm-up.

Which of the following questions does a court NOT ask to determine whether the requirement of causation is met? A. Was there proximate cause? B. Was there causation in fact? C. Was there intent to cause?

C. Was there intent to cause?

Trespass to land occurs when which of the following happen: A. Without permission, a person enters land that is owned by another. B. Without permission, a person causes anything to enter land that is owned by another. C. Without permission, a person remains on the land owned by another. D. All of these

D. All of these

Steps toward tort reform in the federal government and a number of states include all of the following except: A. Limiting the amount of both punitive damages and general damages that can be awarded. B. Capping the amount that attorneys can collect in contingency fees. C. Requiring the losing party to pay both the plaintiff's and the defendant's expenses. D. Increasing the burden of proof in negligence cases.

D. Increasing the burden of proof in negligence cases.

Theories of product liability may normally be based on all of these theories except: A. Negligence B. Fraudulent misrepresentation C. Strict liability D. Invasion of privacy

D. Invasion of privacy

Which of the following is NOT an element of the tort of wrongful interference with a contractual relationship? A. A valid, enforceable contract must exist between two parties. B. A third party must be aware that the contract exists. C. A third party must intentionally cause one of the parties to break the contract. D. None of these

D. None of these

A crime punishable by imprisonment is a felony. True or False?

False

A person will never be liable for conversion if they bought goods in good faith, even if those goods were stolen.

False

A reasonable apprehension or fear of harmful or offensive contact in the distant future is an assault. True or False?

False

A trespasser will be liable for any damage caused to the property and generally can hold the owner of the land liable for injuries sustained on the premises.

False

Assault:

Any intentional and unexcused threat of immediate harmful or offensive contact.

A wrongful act need not actually be the cause of any injury for liability on a theory of negligence. True or False?

False

Punitive Damages:

Awarded in tort cases to punish the wrongdoer and to deter other from similar wrongdoing.

Which of the following is not an element of fraudulent misrepresentation? A. An intent to induce another to rely on the misrepresentation B. The misrepresentation of opinions C. Damage suffered as a result of the reliance D. Justifiable reliance by the deceived party

B. The misrepresentation of opinions

Instead of warming up, assume the baseball players were goofing off and tossing bowling pins. If Taylor is struck by a bowling pin, can she succeed on her claim of negligence? A. No, because she knowingly and voluntarily purchased seats that were not protected by a cover or net. B. Yes, because tossing bowling pins is not an activity that is necessarily incident to the game of baseball. C. Yes, because tossing bowling pins can be dangerous.

B. Yes, because tossing bowling pins is not an activity that is necessarily incident to the game of baseball.

A person who engages in unexcused and harmful or offensive physical contact against someone else has committed:

Battery

An ordinary person standard determines whether allegedly negligent conduct resulted in a breach of a duty of care. True or False?

False

Bona fide competitive behavior can constitute wrongful interference with a contractual relationship. True or False?

False

Burglary involves taking another's personal property from his or her person or immediate presence. True or False?

False

Embezzlement requires physically taking property for another's possession. True or False?

False

In a product liability action, a contractual relationship between the manufacturer and the injured plaintiff must exist before the plaintiff can sue the manufacturer in court.

False

Which of the following has nothing to do with false imprisonment? A. Intentional confinement or restraint of another person's activities without justification. B. An interference with the freedom to move without constraint. C. A person is made fearful of unwanted and possibly harmful contact with another person.

C. A person is made fearful of unwanted and possibly harmful contact with another person.

Jill is much stronger than Jack and stares at him in a menacing way. One day she tells Jack that she is going to beat him if she ever sees him again. Several hours later she sees Jack coming out of his house and proceeds to punch him in the face. Jack will probably bring a lawsuit against Jill: A. For assault only, because Jack was punched. B. For battery only, because Jack was punched. C. For assault and battery, because there was both a threat and a harmful action.

C. For assault and battery, because there was both a threat and a harmful action.

Cooktop, Inc., manufactures cooktops on which Juarez burns his fingers. Has Cooktop, Inc., unreasonably violated its standard duty of care? A. No, if Cooktop disclaimed all liability for accidents. B. Yes, if Cooktop placed no warnings about the possibility of being burned. C. No, because stoves get hot and some people get burned when they are careless.

C. No, because stoves get hot and some people get burned when they are careless.

You throw a small birthday party for a friend at a county park. The park closes at sundown, but you and your friend want to come back early the next day to continue the fun, so you leave some of your belongings in the picnic area to hold your spot. Most likely you have committed: A. Trespass to land, but you have a complete defense. B. Trespass to personal property. C. Trespass to land.

C. Trespass to land.

When you borrow a friend's tablet device and refuse to give it back, you have committed: A. Trespass to title. B. Trespass to land. C. Trespass to personal property. D. Disparagement of property.

C. Trespass to personal property.

International treaties never stipulate arbitration for resolving disputes. True False

False

General Damages:

Intended to compensate individuals (but not companies) for the non-momentary aspects of the harm suffered from a tort, such as pain and suffering.

Compensatory Damages:

Intended to compensate or reimburse a plaintiff for actual losses.

Special Damages:

Intended to compensate the plaintiff for quantifiable momentary losses, such as medical expenses.

Invasion of Privacy:

Publishing or otherwise making known or using information relating to a person's private life and affairs, with which the public has no legitimate concern, without that person's permission or approval.

One good defense against strict product liability is that:

The goods were altered after they were sold

RICO is often used to prosecute acts classified as white-collar crimes. True or False?

True

A court can exercise jurisdiction over property that is located within its boundaries. True False

True

A court's review of an arbitrator's award may be restricted. True False

True

A defamatory statement must be communicated to a third party to be actionable. True or False?

True

A person who accesses a computer online, without authorization, to obtain protected data commits a federal crime. True or False?

True

An Internet service provider is not normally liable for its users' defamatory remarks. True or False?

True

Conversion is wrongfully taking or retaining an individual's personal property and placing it in the service of another. True or False?

True

Generally, a person is not responsible for a criminal act if, as a result of a mental defect, he or she lacked substantial capacity to appreciate the wrongfulness of the act. True or False?

True

In a strict product liability lawsuit, the product must be in a defective condition when the defendant sells it.

True

Only the government prosecutes criminal defendants. True or False?

True

Did the appellate court affirm the lower court's decision?

Yes

The Iowa Supreme Court rules against Jennifer in a case against Kut-Rate Stores, Inc. Jennifer wants to appeal her case to the United States Supreme Court. She must ask the Court to issue a writ of a. certiorari. b. appeal c. jurisdiction d. summons

a certiorari.

Driving a car negligently, Nick crashes into a phone pole. The pole falls, smashing through the roof of a house, killing Odell. But for Nick's negligence, Odell would not have died. Regarding the death, the crash is the a) cause in fact b) intervening cause c) proximate cause d) superseding cause

a) cause in fact

Nina is injured in a truck accident and sues Opal, alleging negligence. Opal claims that Nina was driving carelessly. Comparative negligence may reduce Nina's recovery a) even if Nina was only slightly at fault b) only if Nina was as equally at fault as Opal c) only if Nina was less at fault than Opal d) only if Nina was more at fault than Opal

a) even if Nina was only slightly at fault

A clause in a contract between Tall Timber Corporation, a U.S. firm, and Wang Woods, Ltd., a Japanese firm, specifies that disputes over the contract will be adjudicated in the United States. This is a. a forum-selection clause b. a domestic-dispute clause c. an arbitration clause d. an adjudication clause

a. a forum-selection clause

Orson files a suit against Portia. Before going to trial, the parties meet, with their attorneys to represent them, to present their dispute to a third party who is not a judge but who imposes a resolution on the parties. This is a. arbitration b. mediation c. negotiation d. not a legitimate form of dispute resolution

a. arbitration

As a judge in a federal court, Christine can decide, among other things, whether the laws or actions of the executive and legislative branches are constitutional. The process for making this determination is known as a. judicial review b. venue c. early neutral case evaluation d. jurisdiction

a. judicial review

Cal-Ban 3000 was a weight-loss drug made by Health Care, a Florida corporation. Tart, a citizen of North Carolina, read ads for the product in a newspaper and bought Cal-Ban in North Carolina from a local pharmacy. Within a week of taking the supplement, Tart suffered a ruptured colon. Alleging that the injury was caused by Cal-Ban, Tart sued Health Care in a North Carolina state court. Health Care asked the court to dismiss the case, arguing that the North Carolina court could not exercise personal jurisdiction over Health Care. The court most likely: a. refused to dismiss the case, because the defendant had placed the product in the stream of commerce in North Carolina and was subject to being sued in North Carolina. b. refused to dismiss the case, because it was not fair to make Tart travel to Florida for trial. c. dismissed the case because North Carolina did not have personal jurisdiction over the defendant, so Tart would have to sue in the Florida courts. d. dismissed the case because the dispute should be tried in a federal court, given that the defendant and the plaintiff were from different states.

a. refused to dismiss the case, because the defendant had placed the product in the stream of commerce in North Carolina and was subject to being sued in North Carolina.

Arnold loses his suit against Buffy in a Texas state trial court. Arnold appeals to a state intermediate court of appeals and loses again. Arnold would appeal next to a. the Texas Supreme Court b. a U.S. district court c. the U.S. Court of Appeals for the Fifth Circuit d. the United States Supreme Court

a. the Texas Supreme Court

Stan, a citizen of Iowa, files a lawsuit in an Iowa state trial court against Jalisco Farm Supply, a Texas company that sells supplies in Iowa. The court has original jurisdiction because: a. the case is being heard for the first time. b. the parties have diversity of citizenship. c. the court has venue. d. the court has concurrent jurisdiction.

a. the case is being heard for the first time.

Fred drives across Gail's land. This is a trespass to land only if a) Fred damages the land b) Fred does not have Gail's permission to drive on her land c) Fred makes disparaging remarks about Gail's land d) Gail is aware of Fred's driving on her land

b) Fred does not have Gail's permission to drive on her land

Gil sends a letter to Holly in which he falser accuses her of embezzling. This is defamation only if the letter is read by a) a public figure b) any third person c) Holly d) Holly's employer

b) any third person

Ron, a bank teller, deposits into his account checks that bank customers give to him to deposit into their accounts. This is a) burglary b) embezzlement c)forgery d) larceny

b) embezzlement

Ron accuses Sam of fraud. Normally, the reliance that gives rise to fraud is based on a statement of a) delusion b) fact c) opinion d) puffery

b) fact

To protect its customers and other business invitees, Grocers market must warn them of a) all dangers b) hidden dangers c) obvious dangers d) no dangers

b) hidden dangers

Erv, an engineer, supervises the construction of a new house. When the house collapses due to faulty construction, the injured parties sue Fran. As professional, Erv is half to the same standard of care as a) ordinary persons b) other engineers c) other professionals, including accountants, attorneys, and physicians d) the injured parties

b) other engineers

Transpac Corp. and Alliance, Inc., agree to a contract that includes an arbitration clause. After a dispute arises, the case goes to arbitration. The arbitrator finds in Transpac's favor. Alliance files a lawsuit, alleging that the award should not be enforced because the arbitrator made an error in her findings of fact. The court will likely: a. review the sufficiency of the award. b. do nothing. c. review the merits of the dispute. d. set aside the arbitrator's award.

b. do nothing.

John is a resident of Iowa. While driving through California, he is in an accident involving Marisol, a California resident. Marisol files a lawsuit in a California state court. Over John, the California court has: a. diversity jurisdiction. b. in personam jurisdiction. c. no jurisdiction. d. in rem jurisdiction.

b. in personam jurisdiction.

Jackson, a homeowner, files a lawsuit against Michael, his construction contractor. Prior to trial, they meet with their attorneys to try to resolve their dispute before going to trial. This proceeding is known as: a. early neutral case evaluation. b. negotiation. c. arbitrability. d. a summary jury trial.

b. negotiation.

Toybox, Inc., manufactures the Spintop, a toy that the company has discovered can cause harm. Before anyone is injured, Anne, a pediatric nurse who has not purchased a Spintop, files a suit against Toybox. In seeking to have the suit dismissed, Toybox's best argument is that Anne does not have: a. certiorari. b. standing to sue. c. judicial review. d. jurisdiction.

b. standing to sue.

Marco files a lawsuit against Allied Company in an Oregon court with limited jurisdiction. The difference between general and limited jurisdiction is based on: a. whether a case is brought by an individual or a business. b. the subject matter of the cases that the court can decide. c. whether the court is exercising in personam or in rem jurisdiction. d. how many defendants are named in the lawsuit.

b. the subject matter of the cases that the court can decide.