Study questions: Unit 2 Torts; Chap 8

16. In a negligence case, the plaintiff must establish a. duty, strict liability, causation, and injury. b. mens rea, breach, foreseeable harm, and injury. c. duty, actus reus, foreseeable harm, and causation. d. duty of due care, breach, factual cause, foreseeable harm, and damages.

d

40. Discuss the concepts of contributory negligence and comparative negligence.

Contributory negligence is a defense that can be used by a defendant to avoid liability. Most states have discarded this concept; however, if allowed, even if the plaintiff were one percent responsible for an accident, she cannot recover from the defendant. Comparative negligence is used to pro rate each party's fault in a negligence case. So, if the plaintiff is 50 percent or less responsible, she is allowed to collect relative to her degree of fault. Thus, if the plaintiff were 30 percent responsible for her accident and sustained $100,000 worth of injuries, she could recover $70,000 (70 percent) from the defendant.

42. On Monday, Travis took his four-wheeler to Reppart's Equipment & Service for repair because the steering was not working properly. On Friday he called Reppart's to see if his four-wheeler was ready because he wanted it for a weekend trip. Reppart's said they had done the major repairs but that the steering system still needed some work and they needed another few days to finish the repairs. Travis told them he would pick the four-wheeler up and use it for the weekend and then bring it back to have them finish their work. While riding with friends on the weekend, Travis ran into someone because the steering stuck and he couldn't swerve to avoid them. Discuss how a court would determine causation in a negligence suit against Travis.

Courts look at two issues to determine causation: Was the defendant's behavior the factual cause of the harm? Was this type of harm foreseeable? If Travis's breach of duty physically led to the ultimate harm, it is the factual cause. Since Travis knew the repairs were not completed, his unreasonable behavior in using the four-wheeler was the factual cause of the harm to the plaintiff. For Travis to be liable, the type of harm must have been reasonably foreseeable. Travis could easily foresee that a bad steering system could cause an accident while he was riding. He need not have foreseen the exact results, but he could foresee the general type of harm involving defective steering. Therefore, in this case the factual cause and foreseeable harm elements of a negligence suit against Travis would have been met.

1. Palsgraf v. Long Island Railroad Co. addressed the issue of furnishing alcohol to minors. a. True b. False

False

12. In a strict liability case, the courts still consider if the defendant acted in a reasonable and prudent manner. a. True b. False

False

2. A landowner's highest duty is owed to licensees. a. True b. False

False

3. Negligence issues are firmly ingrained in law and do not change. a. True b. False

False

4. 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. a. True b. False

False

6. The doctrine of contributory negligence is followed in most states. a. True b. False

False

7. 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. a. True b. False

False

39. List and discuss the elements necessary to establish negligence.

For there to be a successful lawsuit for negligence, five elements must be established: duty of due care, breach, factual cause, proximate cause, and damages. Duty is the responsibility to use reasonable care not to injure others around you. If the defendant could foresee that his misconduct would injure a certain person, he has a duty to that person. Normally, there is no duty to avoid the injury of others through nonconduct, unless there is a special relationship. Breach is conduct that fails to meet the standard of reasonable care imposed if there is a duty to the injured party. Factual cause requires that the defendant's conduct, at least in part, actually caused the injury. Proximate cause requires that the risk of harm was reasonably foreseeable and not so remote or bizarre that a reasonable person would never have expected it to happen. And finally, Damages: the plaintiff must have actually been hurt or has actually suffered a measurable loss. The injury must be genuine, not speculative.

10. 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. a. True b. False

True

11. In strict liability, if a company sells a beverage in a can that has sharp edges and injures several consumers, it will be held liable even if it didn't know about the problem. a. True b. False

True

13. Silas asks his friend Shelby to come to his property to go fishing at his pond. If he fails to warn her that the dock has a rotten spot and she falls through and is injured, Silas would be held liable in most states. a. True b. False

True

14. A defendant engaging in an ultrahazardous activity is almost always liable for any harm that results. a. True b. False

True

15. The duty of care that each of us must follow is to behave as a reasonable person. a. True b. False

True

5. Res ipsa loquitur shifts the burden of proof from the plaintiff to the defendant. a. True b. False

True

8. Most states recognize some form of comparative negligence. a. True b. False

True

9. 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. a. True b. False

True

17. For the defendant to be liable in a negligence case, it must be proven that the type of harm caused by the defendant must have been reasonably foreseeable. This is referred to as a. proximate cause. b. duty of due care. c. factual cause. d. breach.

a

22. 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? a. Miles actions were negligent. b. No tort has been committed. c. Miles committed an intentional tort. d. Miles is strictly liable.

a

24. 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 a. there was no way to foresee that the incident would happen. b. the incident occurred away from the office. c. the killing was the result of a personal conflict between Wayne and the supervisor. d. even if the company had been aware of Wayne's difficulty with his supervisor, Wayne did not have any criminal history.

a

25. Which of the following statements regarding a negligence case is correct? a. A plaintiff must show that the defendant's act was both the factual cause of her injury as well as a foreseeable injury. b. A plaintiff must show that the defendant's act was the factual cause of her injury even if the injury was not foreseeable. c. A plaintiff must show that the defendant's act created a foreseeable danger even if it was not the factual cause of her injury. d. A plaintiff does not have to show that the defendant's act either created a foreseeable danger or that the act was the factual cause of her injury.

a

28. 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? a. Kyle will not collect any damages since he did not sustain any damages. b. Kyle will collect damages because the restaurant committed negligence per se. c. Kyle will collect damages if he proves it was possible to prevent tiny fish bones from being present in clam chowder. d. Kyle will collect damages, as res ipsa loquitur applies.

a

30. In a comparative negligence state, if the plaintiff in a negligence lawsuit is found to be 30 percent negligent, the plaintiff would recover a. 70 percent of the damages. b. all of the damages. c. none of the damages. d. 30 percent of the damages.

a

33. Tommie, a six-year-old child, was seriously injured when he stuck a fork into an electrical outlet at a restaurant. His parents sued the restaurant where the incident occurred, claiming it should have had child protective guards on the outlets even though no law required the restaurant to do so. Whether the restaurant is liable will be dependent upon whether a. the incident was reasonably foreseeable. b. the court views Tommie as a licensee or a trespassing child. c. this is negligence per se. d. this is an ultrahazardous activity.

a

36. The test of "foreseeability" is generally used to determine the existence of which element of a negligence case? a. Duty of due care b. Breach c. Factual cause d. negligence per se

a

41. A contractor used dynamite to loosen a rocky hillside. The blast from the dynamite caused a house foundation to crack. The house was located over a half-mile away from the dynamite site. The contractor was careful when using the dynamite and no allegation of negligence is made. However, the house owner claims the contractor is liable for damage to the foundation. Is the house owner correct? Explain.

Yes. The contractor is liable under the concept of strict liability. Generally speaking, strict liability applies if a person engages in dangerous activity that results in damage to property or personal injury. The homeowner does not have to prove duty, breach, or foreseeable harm. The fact that a person was very careful in carrying out the dangerous activity is not relevant. The only issue is whether the dangerous activity was the direct cause of the property damage or personal injury. In essence, strict liability is a trade-off, allowing for people to engage in dangerous activity but at the same time requiring them to be totally responsible if a person sustains damages as a result of that activity. It is incumbent on the person to obtain sufficient liability insurance if he is going to engage in dangerous activity so he will be able to provide proper compensation to any person damaged by the activity.

38. What level of owner's liability does a trespassing adult have? a. lowest level b. mid level c. higher level d. highest level

a

21. 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: a. prevail because society places a duty on people to help each other and Kelly breached this duty, resulting in Bob's injury. b. lose because Kelly had no legal duty to rescue him. c. lose even though Kelly had a legal duty to save him, since Bob will not be able to prove that Kelly's failure to act was the proximate cause of his injuries. d. lose because a reasonable person could not have foreseen that someone in a recreation area could not swim well.

b

31. As it applies to landowners, which of the following statements regarding liability to a licensee is correct? a. Whether or not the landowner is responsible for injury depends on whether the licensee is an adult or a child. b. The landowner is liable to a licensee for injuries caused by hidden dangers only. c. Since the licensee is a trespasser on the landowner's property, the landowner is not responsible for injury. d. Since a licensee has permission to be on the landowner's property, the landowner is responsible for all injury whether hidden or obvious.

b

32. A customer in a restaurant would be considered ________ to whom the restaurant owner owes a duty ________. a. a licensee; to warn of known dangers. b. an invitee; of reasonable care. c. a social guest; only to avoid intentionally injuring him. d. a licensee; of strict liability

b

34. A branch of tort law that imposes a much higher level of liability when harm results from ultrahazardous acts or defective products is referred to as a. res ipsa loquitur. b. strict liability. c. heightened liability. d. strict negligence.

b

19. Negligence concerns harm that a. is unforeseeable. b. arises intentionally. c. arises by accident. d. is always substantial.

c

20. Which of the following represents a landowner's lowest liability? a. trespassing children b. licensees c. trespassing adults d. invitees

c

23. 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? a. Res judicata b. Stare decisis c. Res ipsa loquitur d. Mens rea

c

26. If a court applies res ipsa loquitur a. the plaintiff needs to prove the case by a preponderance of the evidence. b. the plaintiff must prove the case by clear and convincing evidence. c. the defendant has the burden of proving he or she is not liable. d. the defendant is strictly liable.

c

35. The notion that if a plaintiff is even slightly negligent, he or she recovers nothing is known as a. comparative negligence. b. reasonable negligence. c. contributory negligence. d. insignificant negligence.

c

18. Annette drove through an intersection without looking and hit Vincent's car that he had driven into the intersection without obeying a stop sign. Annette sued Vincent. The jury found that Annette's fault contributed 20 percent to the collision and determined that her total loss was $100,000. Under comparative negligence, the jury should award Annette a. $20,000. b. $80,000. c. $100,000. d. nothing.

b

37. Don was driving his truck when a board fell out of the truck bed and onto the road. Alice, who was driving closely behind Don's truck, tried to avoid the board, swerved and struck a telephone pole, causing her severe injuries. Which of the following is correct? a. Don is strictly liable to Alice for her injuries. b. In a comparative negligence state, the actions of Don and Alice will be weighed to determine liability. c. Don was not negligent in allowing the board to fall out of his truck. d. Don is engaging in ultrahazardous activity.

b

27. 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? a. Yes. The neighbor should have posted "thin ice" notices. b. No. Kelley was a trespasser and the neighbor can only be held liable for intentionally injuring her or for gross misconduct. c. It may depend on Kelley's age. d. Yes, the neighbor is strictly liable.

c

29. 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 a. win because the mechanic was negligent in overinflating the tire, which led to Phillip's injury. b. win based on negligence per se. c. lose because the court would apply the doctrine of res ipsa loquitur. d. 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.

d