Torts
The discovery doctrine provides that the statute of limitations does not begin to run until the injury is, or should have been, discovered.
True
The foreseeable negligence of others is not considered a superseding cause.
True
The standard of care applied to professionals is an objective one.
True
Today, a plaintiff's intent to reserve his or her rights to sue nonreleased defendants can be proved using verbal statements.
True
Under the doctrine of equitable indemnity, the amount of indemnity is dependent on the relative fault of the tortfeasors.
True
With regard to malicious prosecution, a plaintiff's plea of guilty in acceptance of a plea bargain is not considered a favorable conclusion for the plaintiff.
True
Wrongful death litigants must often focus their efforts on determining legislative intent.
True
Federal preemption of state law must be expressed; it cannot be implied.
False
In the Learned Hand formula, the L stands for the burden of taking precautions to avoid the harm.
False
One must retreat before using deadly force inside one's home.
False
Tort law is based on personal morality.
False
Under common law, damages for loss of life are allowed.
False
According to the Cardozo rule, a wrong should be defined in terms of the natural and probable.
True
According to the last clear chance doctrine, the defendant's failure to take advantage of an opportunity to prevent the harm negates the plaintiff's contributory negligence.
True
As a result of joint and several liability, defendants may be forced to shoulder harm caused by others.
True
Both the plaintiff and the defendant can file a motion for summary judgment.
True
Comparative negligence was created as an alternative to the all-or-nothing approach of contributory negligence.
True
Economic loss includes the loss of profits
True
If tortfeasor A pays the full amount of the judgment, tortfeasor A may be entitled to partial reimbursement from B and C.
True
Intervening causes relieve defendants of liability.
False
Punitive damages can be awarded in any negligence case.
False
The substantial factor test is an alternative to the but-for test when proving proximate cause.
False
Threats of future harm are sufficient to constitute assault.
False
To evaluate future medical expenses, attorneys usually use personal injury valuation programs.
False
Under the family purpose doctrine, the head of the family is vicariously liable for the negligence of anyone who drives his or her vehicle.
False
Defenses raised by defendants in strict liability cases include:
Lack of proximate cause
Which of the following is the Learned Hand formula?
P x L > B
The most difficult hurdle for plaintiffs to overcome in malicious prosecution cases is:
The probable cause requirement
Early in Anglo-Saxon history, compensation was paid to the clan instead of the individual.
True
If a patient tells a psychiatrist that he or she plans to kill someone, the psychiatrist has a duty to warn the person.
True
If a plaintiff reneges on a covenant not to sue and decides to sue, the defendant with whom the plaintiff entered into the covenant will have a counterclaim for breach of contract.
True
If a property is completely destroyed, damages are measured according to the value of the property at the time and place the tort occurred.
True
Justice Cardozo's formulation of foreseeability is often referred to as the "zone of danger" test.
True
Public policy concerns are the interests and goals of society at large.
True
The discovery doctrine mitigates the harshness of some statutes of limitation.
True
A third person's criminal conduct is always considered a superseding cause if such conduct results in injury to the plaintiff.
False
A tort is a criminal wrong that is punishable by law.
False
Actions alone cannot constitute misrepresentation.
False
All six factors set forth by the Restatement must be met before an activity may be classified as abnormally dangerous.
False
An employer is generally liable for the negligent acts of employees committed while they are coming to or leaving work
False
If an employee acts negligently and allows an unauthorized person to use the company car and that person gets into an accident, the employer will not be held liable.
False
Only spouses can recover under wrongful death statutes.
False
Torts can only be classified under one category.
False
Assumption of risk is a defense to strict liability but contributory negligence is not.
True
If a retailer learns of a defect in a product and fails to warn the consumer, many courts will absolve the manufacturer of liability.
True
Most states have abolished sovereign immunity today.
True
Proximate cause is also called legal cause.
True
A defendant is not liable for trespass if his or her contact with the defendant's land is the result of a reasonable mistake.
False
According to foreseeable negligence, social hosts are usually held liable for the conduct of their intoxicated guests.
False
Cases involving innocent misrepresentations can only be brought on the basis of express warranty theory.
False
Children, but not their parents, can recover for loss of consortium.
False
Contributory negligence is a defense even if the defendant's conduct was reckless.
False
Contributory negligence is not a defense if the defendant acts intentionally but is a defense if the defendant acts recklessly.
False
Courts are more likely to find proximate cause in a strict liability case than in a negligence case?
False
Fraud and misrepresentation are two distinct torts.
False
If a hazardous condition is a natural one, the possessor is under a duty to remove it or protect others from it, especially if the hazardous condition poses an unreasonable danger of harm to people outside the property.
False
In a covenant not to sue, the plaintiff releases all defendants from liability.
False
Mistake in and of itself is a defense to an intentional tort.
False
Novices in a profession are held to a lower standard of care than their more experienced counterparts.
False
One who hires an independent contractor will be held vicariously liable for the tortious acts of that person.
False
Parents are held liable for the unintentional torts of their children.
False
The "eggshell skull" rule states that when the plaintiff suffers foreseeable injury, the defendant is not held for any unforeseen physical consequences.
False
The FTCA allows money damages to be collected against the United States for all intentional torts of its employees.
False
The Federal Tort Claims Act states that monetary damages cannot be recovered against the United States.
False
To bring a claim for interference with existing contractual relations, a plaintiff must prove the defendant intentionally or negligently caused another to breach a contract with the plaintiff.
False
Two or more persons who act in concert to produce a negligent or intentional tort are called concurrent tortfeasors.
False
As long as the defendant is aware that a negligent misrepresentation will be passed on to a limited number of people, the defendant will be held liable even if the defendant is unaware of his or her precise identity.
True
As long as the plaintiff is a member of a class to which there is a general foreseeability of harm, the defendant is liable.
True
Because actual damages must be proved in negligence cases, nominal damages are not available.
True
Before a class action can be brought, a court must provide certification of a class.
True
Black letter principles are legal principles generally accepted by the legal community.
True
Design defect claims can based on either negligence or strict liability analysis.
True
Duty is a threshold question in every negligence case because a defendant is not liable, no matter how reckless the defendant's conduct, unless the defendant owes a duty to the plaintiff.
True
Even if a person has never been on a farm, the reasonable person is presumed to understand that horses are likely to be frightened by certain objects and actions.
True
Only the violation of civil statute can result in a defendant being found negligent per se.
True
Opening statements are not considered part of the evidence, but they are important because the majority of jurors decide the outcome of the case during opening statements and do not change their minds after hearing the testimony.
True
Owners of wild animals may be strictly liable for any damages caused by their pets.
True
Plaintiffs in negligence cases typically have a hard time recovering for pure economic loss.
True
Proximate cause reflects a judicial concern that defendants' liability should be limited at some point.
True
Several states have rejected the distinctions between invitee, licensee, and trespasser and have instead adopted a reasonable person standard of liability.
True
The 50 percent approach is problematic when jurors assign a 50-50 apportionment in terms of blame of the parties.
True
The concerted action theory is a theory plaintiffs often resort to when there are multiple defendants and causation is difficult to prove.
True
The courts are more likely to find misrepresentation if an undisclosed fact is a material one.
True
The doctrine of res ipsa loquitur does not apply if it is just as likely that someone other than the defendant caused the plaintiff 's injury.
True
The family purpose doctrine states that so long as the driver is a member of the family's household and has permission to use the car, the head of the family is vicariously liable for the driver's negligent acts.
True
The goal in defining reasonableness is to balance the plaintiff's need for protection against the defendant's claim of freedom.
True
The issue of proximate cause is a jury question.
True
The key distinction between negligence and strict liability lies in the area of fault.
True
The key to private nuisance is the need for the plaintiff to have an interest in the land that has been affected by the defendant's activities.
True
The most frequent way indemnification arises is by contractual agreement in which one party promises to indemnify another.
True
The omnibus clause in most automobile liability insurance policies has substantially reduced the need for automobile consent statutes.
True
The only intent required for trespass to chattels is the intent to interfere in some way with the plaintiff's chattel.
True
The purpose of indemnification is to avoid the unjust enrichment of tortfeasors.
True
The purpose of suing in torts is to compensate the victim.
True
The question of actual cause is a question of foreseeability.
True
The rationale underlying strict liability in product liability is that it is easier for the defendant to bear the risk of loss than for the plaintiff.
True
To recover for misrepresentation, the plaintiff must prove that his or her losses were a reasonably foreseeable result of the misrepresentation.
True
A merchant who sells a television but is entitled to repossession because the buyer fails to make payments may do what to repossess the property?
Upon promptly learning that the consumer used fraud to gain possession of the television, use reasonable force to repossess it
Modern courts hold defendants liable for injury to a fetus only when:
A causal link between the defendant's act and the fetus's injury can be proven.
A party that wants to excuse a particular juror and can show that the juror has already formed a judgment about how the case should be decided may remove the juror using:
Challenge for cause
A loss of consortium claim is a:
Derivative claim
A 10-year-old child of above-average intelligence is held to a higher standard of conduct than a 10-year-old child of below-average intelligence.
True
A cause of action based on breach of warranty contains characteristics of both tort and contract law.
True
A defect that is not visible to the buyer is called a(n):
Latent defect
Insane people are generally held to the reasonable-person standard for the following policy reason(s):
c. The potential of liability provides an incentive to the wards of the mentally incompetent to supervise their charges closely and to prevent them from harming others.
Reasonable persons are assumed to possess knowledge of scientific and natural laws that is common to laypersons in the community.
True
Recovery under loss of consortium can lead to double recovery.
True
Risk of serious harm is "likelihood that the harm that results from it will be great."
True
Some argue that charitable organizations should be immune from suit because beneficiaries of such organizations impliedly waive their rights to sue by accepting the benefits the organization has to offer.
True
Some courts exempt defendants from strict liability if the harm that occurs is a result of an "act of God."
True
Some courts have imposed a physical harm requirement to minimize the possibility that a plaintiff is feigning his or her injuries
True
Some courts have used imputed negligence to preclude a passenger from suing the driver of the vehicle in which the passenger was riding when the driver and passenger are joint venturers.
True
Some feel that punitive damages should be awarded to the state and not the plaintiff.
True
Some people argue that awarding damages for pain and suffering may actually reinforce a plaintiff's pain.
True
Some states use the avoidable-consequences rule to argue that the plaintiff should have taken certain safety precautions before the accident.
True
Statutes of limitations begin to run when actual injury to the plaintiff or the plaintiff's property occurs.
True
Statutes of limitations protect defendants from having to defend stale claims.
True
Strict liability is applicable even when a defendant is neither negligent nor has any intent of wrongdoing.
True
Structured settlements are widely used in product liability cases.
True
The courts have generally found that automobile manufacturers are legally obligated to design "crashworthy" vehicles.
True
The defendant whose conduct is willful and wanton or reckless may still rely on the defense of comparative negligence to reduce the plaintiff's recovery.
True
The defense of contributory negligence completely bars the negligent plaintiff from recovery even though the defendant was negligent and, in most cases, was more negligent than the plaintiff.
True
The issue of proximate cause is a question of law for a judge to decide.
True
The majority of American courts, along with the Restatement (Second) of Torts, have adopted the rationale of the English case Rylands v. Fletcher when determining what are considered abnormally dangerous activities.
True
The manufacturer of a component part, no less than the manufacturer of the completed product, may be liable for failure to use reasonable care.
True
The physical characteristics of a defendant are sometimes taken into consideration in determining the reasonableness of behavior.
True
The plaintiff bears the burden of proving actual cause.
True
The plaintiff's counsel presents his or her closing argument to the jury first.
True
The rationale underlying the doctrine of respondeat superior is that employers should consider the expense of reimbursing those injured by their employees as part of the cost of doing business.
True
The rationale underlying the immunity of judges is that they must be able to carry out their duties without fear of being sued.
True
The risk-contribution theory has been used to relax the plaintiff's burden of proof to establish causation in a mass tort case.
True
The theory behind discovery is that the more each side finds out about the other side's case, the more likely they are to settle out of court.
True
The tort of infliction of mental distress can be committed either intentionally or recklessly.
True
The tort of misrepresentation is interwoven with other types of tortious behavior.
True
Those who incorporate misstatements into commercial documents are liable to those who suffer as a result of justifiable reliance on those misstatements.
True
To be held liable for an intentional tort, a tortfeasor need not desire or plan to harm a person but must be aware that certain consequences are substantially certain to result from his or her acts.
True
To be held liable for the tort of infliction of mental distress, the defendant's conduct must be considered intolerable in any civilized society.
True
Under common law a defendant has no legal obligation to aid a plaintiff in distress even though the defendant could assist the plaintiff without causing any harm to him- or herself.
True
Under common law a landlord was relieved of liability once the landlord surrendered possession of his or her property to the tenant.
True
Under common law, wives could not recover for loss of consortium.
True
Under the Uniform Commercial Code, a seller can disclaim both implied and express warranties.
True
Under the collateral-source rule, a plaintiff who is reimbursed for out-of-pocket expenses by his or her insurance company is entitled to recover those damages again from the defendant.
True
When a consumer asks advice from a salesperson at the hardware store regarding what type of lumber he should purchase for a construction project, and the type of lumber he purchases turns out to be unsuitable, the consumer can sue the hardware store on the basis of breach of implied warranty.
True
When courts render decisions imposing strict liability on defendants even though they were not negligent, defendants have a strong incentive to prevent the occurrence of future harm.
True
When dealing with breach of warranties, plaintiffs usually look to tort law when the damages they sustain involve injury to person and property, and they look to contract law when their injuries are primarily economic in nature.
True
In which of the following would the employer be held liable for the actions of its employee? a. A store security guard wrestles a suspected shoplifter to the ground even though the store has a policy forbidding physical force. b. A pizza delivery driver takes a twenty-mile detour for a little rendezvous with his girlfriend. c. A convenience store clerk gets in an accident on her way home after working a late shift. d. None of the answers is correct.
a. A store security guard wrestles a suspected shoplifter to the ground even though the store has a policy forbidding physical force.
Which of the following is (are) example(s) of superseding cause? a. Act of God b. Eggshell skull c. Foreseeable negligence of others d. All answers are correct.
a. Act of God
A defendant may be held liable for innocent misrepresentations if: a. The defendant is involved in a sale, rental, or exchange transaction and makes a material misrepresentation to the plaintiff in an effort to close a deal. b. The defendant has information that the plaintiff does not have. c. The plaintiff would not have entered into the sale, rental, or exchange transaction but for the misrepresentation of the defendant. d. All answers are correct.
a. The defendant is involved in a sale, rental, or exchange transaction and makes a material misrepresentation to the plaintiff in an effort to close a deal.
Conversion does NOT occur under which of the following circumstances? a. The defendant mistakenly takes the plaintiff's coat but returns it moments later when the defendant realizes the mistake. b. The defendant mistakenly takes the plaintiff's coat but does not realize for two months that the coat is not his or hers; the defendant returns it as soon as he or she realizes the mistake. c. The defendant knowingly takes the coat but returns it moments later when the defendant sees a police officer. d. All answers are correct.
a. The defendant mistakenly takes the plaintiff's coat but returns it moments later when the defendant realizes the mistake.
Under the Learned Hand formula, which of the following factors are considered in determining the utility of the defendant's conduct? a. The law attaches a significant social value to the result of the conduct b. The extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of the class of which the other is a member c. The extent of the harm likely to be caused to the interests imperiled d. All answers are correct.
a. The law attaches a significant social value to the result of the conduct
Reasonable persons are expected to know: a. The poisonous qualities of certain animals, insects, drugs, and chemicals b. The rate of speed at which a train travels c. The amount of electricity traveling through high-voltage lines d. All answers are correct.
a. The poisonous qualities of certain animals, insects, drugs, and chemicals
Which of the following is NOT a basic element of a complaint? a. Jurisdiction b. Demand letter c. Parties to the action d. Relief
b. Demand letter
The purpose of strict liability is to: a. Protect the public from dangerous products b. Protect consumers and allocate the risk to manufacturers c. Compensate parties for the loss of the benefit of their bargain d. All answers are correct.
b. Protect consumers and allocate the risk to manufacturers
A defendant is NOT liable for: a. Intervening acts b. Superseding acts c. Accidents d. None of the answers is correct
b. Superseding acts
Which of the following factors does the court consider when determining whether a person is acting as an employee or an independent contractor? a. The fact that the employer refers to the person as an independent contractor b. The amount of control exercised by the employer over the person's work c. The language in the parties' contract d. All answers are correct.
b. The amount of control exercised by the employer over the person's work
Which of the following is true of automobile guest statutes? a. Automobile guest statutes cannot be used to limit duty of care. b. The driver's conduct must be willful and wanton, grossly negligent, or reckless before the driver will be held liable. c. The driver can concede negligence to assist the guest in recovering damages. d. All answers are correct.
b. The driver's conduct must be willful and wanton, grossly negligent, or reckless before the driver will be held liable.
According to the last clear chance doctrine, the plaintiff can recover in all courts if: a. The plaintiff is helpless and the defendant fails to discover danger because the defendant is inattentive. b. The plaintiff is helpless and the defendant discovers the danger but negligently fails to avoid it. c. The plaintiff is inattentive but not helpless and the defendant discovers danger but negligently fails to avoid it. d. All answers are correct.
b. The plaintiff is helpless and the defendant discovers the danger but negligently fails to avoid it.
Gallagher agreements differ from Mary Carter agreements in that:
b. The terms of the Gallagher agreements are fully disclosed.
Which of the following is (are) a defense(s) to intentional torts? a. Transferred intent b. Public necessity c. Duress d. All answers are correct.
b. public necessity
Which of the following would be considered a dangerous animal? a. Bull b. Stallion c. Fox d. All answers are correct.
c. Fox
To establish a causal link between the act constituting a violation of the statute and the plaintiff's injury, which of the following questions must be answered? a. Did the defendant violate a statute? b. What are the damages resulting from the violation? c. Is the plaintiff a member of a class protected by statute? d. None of the answers is correct.
c. Is the plaintiff a member of a class protected by statute?
Which of the following is (are) exception(s) to the Cardozo rule? a. The defendant owes a duty to the world at large and not just persons in the "danger zone." b. The defendant is liable for all consequences flowing directly from the defendant's actions no matter how unforeseeable. c. The defendant is liable if the harm suffered by the plaintiff is of the general type that made the defendant's conduct negligent even if the harm occurs in an unusual manner. d. All answers are correct.
c. The defendant is liable if the harm suffered by the plaintiff is of the general type that made the defendant's conduct negligent even if the harm occurs in an unusual manner.
Class action suits are filed: a. To punish manufacturers b. To ensure that a large group of plaintiffs' claims are heard within the statute of limitations c. To avoid overwhelming the court system with a myriad of individual suits d. All answers are correct.
c. To avoid overwhelming the court system with a myriad of individual suits
Which of the following would be a defense in an assault action? a. The plaintiff was not the target of the assault. b. The defendant had merely intended to frighten the plaintiff. c. The defendant was not aware of the threat. d. None of the answers is correct.
c. the defendant was not aware of the threat
A plaintiff is barred from recovering on the basis of strict liability if the plaintiff: a. Knowingly subjects him- or herself to danger b. Voluntarily subjects him- or herself to danger c. Reasonably subjects him- or herself to danger d. All answers are correct.
d. All answers are correct
A plaintiff who has been subjected to unwarranted judicial proceedings may sue on the basis of: a. Malicious prosecution b. Wrongful institution of civil proceedings c. Abuse of process d. All answers are correct
d. All answers are correct
According to joint and several liability, if a plaintiff suffered damages in the amount of $10,000, and five defendants acted together to cause the injuries, the plaintiff could recover: a. $2,000 from each defendant b. $10,000 from one defendant c. $1,000 from four of the defendants and $6,000 from one of the defendants d. All answers are correct.
d. All answers are correct
According to the Federal Tort Claims Act, the United States is not liable for: a. Assault and battery b. False imprisonment c. Exercise of a discretionary duty d. All answers are correct.
d. All answers are correct
According to the doctrine of Rylands v. Fletcher, factors to be considered when determining abnormally dangerous activities include: a. Not a matter of common usage b. Value c. Inappropriateness d. All answers are correct.
d. All answers are correct
Before a plaintiff can rely on the doctrine of res ipsa loquitur, the plaintiff must prove: a. The negligence was probably due to the defendant. b. The injury suffered by the plaintiff was of a type that does not ordinarily occur except as a result of someone's negligence. c. The plaintiff did not voluntarily contribute to his or her injuries. d. All answers are correct.
d. All answers are correct
Courts have held that a plaintiff's negligence must meet which of the following standards? a. But-for test b. Substantial-factor test c. Plaintiff's negligence contributed to the result d. All answers are correct.
d. All answers are correct
Defenses in product liability claims based on negligence theory include: a. Contributory negligence b. Comparative negligence c. Assumption of risk d. All answers are correct.
d. All answers are correct
Exceptions to the employer-independent contractor nonliability rule include: a. The employer is negligent in dealing with the independent contractor. b. The employer delegates nondelegable duty to the independent contractor. c. The employer hires the independent contractor to do something that involves unusual risks. d. All answers are correct.
d. All answers are correct
Possessors are generally found liable for conditions that pose an unreasonable risk of harm to persons outside the premises, particularly if they are artificial conditions. Which of the following are artificial conditions? a. Swimming pools b. Excavations c. Trees planted by possessor d. All answers are correct.
d. All answers are correct
The notion of "particular damage" means: a. The injuries of a private plaintiff are "different in kind" from the injuries suffered by the general community. b. The injuries were incurred in the plaintiff's exercise of the common right enjoyed by the community. c. The plaintiff suffered greater economic loss than others in the community. d. All answers are correct.
d. All answers are correct
Tort law and criminal law differ in which of the following ways: a. Interests affected b. Standard of proof c. Procedural mechanisms d. All answers are correct.
d. All answers are correct
When determining the reasonable-person standard for children, which of the following should be taken into consideration? a. The age of the child b. The level of intelligence c. The experience under like circumstances d. All answers are correct.
d. All answers are correct
Which of the following is taken into consideration in determining reasonableness? a. Profession b. Custom c. Emergency d. All answers are correct.
d. All answers are correct
Which party can a plaintiff sue in cases of product liability? a. Manufacturer b. Retailer c. Lessor d. All answers are correct.
d. All answers are correct
When multiple defendants may be liable for an injury, which of the following theories do courts follow? a. Alternate liability b. Market-share liability c. Concerted-action liability d. All answers are correct.
d. All answers are correct.
Which of following forms of discovery are given under oath? a. Interrogatories b. Depositions c. Requests for admission d. Interrogatories and depositions
d. Interrogatories and depositions
According to the majority of courts, which of the following is an act that is not abnormally dangerous? a. Use of poisonous gas exterminators b. Crop dusting c. Storage of flammable liquids d. None of the answers is correct.
d. None of the answers are correct
A parent is not held vicariously liable for the tortious acts of his or her child under which of the following scenarios? a. The courts find there was a lack of parental supervision. b. The parent benefits from the tortious act. c. The parent is aware of dangerous tendencies of the child. d. None of the answers is correct.
d. None of the answers is correct
A defendant is liable for trespass if: a. He fires a gun over the plaintiff's land but does not enter the land and the bullet does not land on the property. b. He enters the plaintiff's land and wrongly remains on the land. c. He builds an embankment next to the plaintiff's land and during a regular rain the dirt washes into the plaintiff's land. d. All answers are correct.
d. all answers are correct
Defense of necessity may be used: a. To avoid a criminal attack b. To avert a disaster to a community c. To prevent injury to the person's property d. All answers are correct.
d. all answers are correct
If the jury finds against the plaintiff, he or she can file a(n): a. Motion for a new trial b. Judgment notwithstanding the verdict c. Appeal d. All answers are correct.
d. all answers are correct
The duty to protect individuals from the negligent, intentional, or criminal acts of third parties arises only in the context of special relationships such as: a. Jailor and prisoner b. Rescuer and victim c. Parent and child d. All answers are correct.
d. all answers are correct
Which of the following is a type of contributory negligence? a. Pure b. 50 percent approach c. Not as great as d. None of the answers is correct.
d. none of the answers is correct
_____ is the desire to bring about a particular consequence
intent
A merchant who suspects an individual of shoplifting has the right to detain the individual if:
the detention is brief
All survival statutes state that:
A cause of action for injury to tangible property survives the death of the plaintiff.
Elements of the joint enterprise doctrine include:
A common pecuniary interest
According to the "eggshell skull" rule,
A defendant must "take his plaintiff as he finds him."
Determining whether breach of duty has occurred requires:
A determination of the relevant standard of care
According to statutes of repose, plaintiffs must bring a product liability suit within:
A fixed period of time from the date of the original sale
Under the professional rescuer doctrine:
A landowner's liability is limited even if the conditions of the landowner's property resulted in an injury to firefighters or police officers responding to an emergency.
According to Section 402A of the Restatement (Second) of Torts, the plaintiff must prove which of the following elements to establish strict liability?
A product was sold
Under conflict preemption,
A state law is preempted to the extent that it actually conflicts with federal law.
The rise of negligence as a cause of action coincided with the fall of the following:
Action of trespass
Activities found not abnormally dangerous by courts include:
Airline crash
The primary concern in slippery slope arguments is the following:
An argument used in one case will allow that same argument to be used in innumerable other cases.
Statute of repose begins to run:
At the time of sale of a product
The measure that makes a car owner vicariously liable for negligent acts committed by anyone using the car with the owner's permission is called:
Automobile-consent statute
The duty to mitigate damages is also called the:
Avoidable-consequences rule
If a party temporarily entrusts goods to the care of another, the party who receives custody of the goods is referred to as a:
Bailee
The plaintiff bears the burden of proving actual causation:
By a preponderance of the evidence
The judge will instruct the jury on the rules of law to be applied in a process known as:
Charging the jury
At the conclusion of the trial, the counsel for the defendant presents:
Closing argument
The remedy in a contract case is the following:
Compensate a party with the benefit of the bargain
Damages that are designed to compensate the victim for losses and restore the victim to the position the victim was in before the victim sustained his or her injuries are called:
Compensatory damages
What type of immunity do legislators and judges receive when acting within the scope of their duties?
Complete immunity
The key issue in a strict liability is:
Consumer's expectation
Some states consider assumption of risk to be a form of:
Contributory negligence
A defendant is strictly liable for:
Damages that result from the kind of risk that made the activity abnormally dangerous
According to most states, when may deadly force be used as a form of self-defense?
Danger of death or serious bodily harm
Defendants enjoy advantages under the common law tort of nuisance relative to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) because:
Defendants are only liable for the contamination they cause
Critics of joint and several liability argue:
Defendants should not be required to shoulder the burden for harm caused by others.
Major defects plaintiffs typically allege in product liability cases include:
Design defects
A nuisance can be:
Either a private or a public nuisance
Most courts will impute negligence from:
Employee to employer
The most common relationship involved in vicarious liability is:
Employer and employee
"Day-in-the-life" videos that graphically represent the plaintiff's suffering are generally inadmissible in court because they are unfairly prejudicial to the defendant.
False
A court is more likely to find proximate cause in a strict liability case than in a negligence case.
False
A defendant cannot be held liable if he or she does not violate moral code.
False
A defendant is liable for those damages that result from an abnormally dangerous activity, even if those damages do not result from the type of risk that makes the activity abnormally dangerous.
False
A defendant is never liable for harm that occurs to an unforeseeable plaintiff.
False
A defendant is not liable if the harm suffered by the plaintiff occurs in an unusual manner, regardless of whether the defendant's conduct is found negligent.
False
A defendant must actually be harmed to claim self-defense.
False
A defendant must be harmed to invoke self-defense.
False
A defendant need not actively induce a breach of contract to be held liable for interference with contractual relations.
False
A defendant who commits a trespass to land is liable only for those damages that are foreseeable.
False
A defendant who relies on a state-of-the-art defense will be absolved of liability if it can show that no reasonable alternative design existed at the time.
False
A defendant who violates a statute and, as a result, injures a plaintiff is automatically negligent per se.
False
A nuisance and a trespass are similar except that a trespass requires that interference with the land must be substantial.
False
A person who makes a negligent misrepresentation is liable to anyone whom he or she reasonably expects to learn about the misrepresentation.
False
A plaintiff cannot recover from the defendant if he or she has already recovered for some of his or her damages under Social Security or from the plaintiff's employer's sick pay benefits.
False
A plaintiff initiates a lawsuit by sending a demand letter to the defendant.
False
A plaintiff must be aware of a battery but need not have any awareness of an assault in order to recover.
False
A plaintiff must show that he or she suffered some kind of physical harm to recover for mental suffering.
False
A plaintiff must suffer pain or bodily harm to recover for battery.
False
A plaintiff suing on the basis of public nuisance can recover even if the damages the plaintiff suffered are the same as those suffered by the rest of the community.
False
A plaintiff who is unable to prove which of several defendants caused the plaintiff's injuries will not be able to prove negligence.
False
A possessor who has a backyard pool is liable to a trespassing child, regardless of the age of the child.
False
A seller of land is released from tort liability once the buyer takes possession of the property even if the seller knew about a dangerous condition and failed to disclose it.
False
A typical Mary Carter agreement allows the plaintiff to settle with nonagreeing defendants for an amount less than the guaranteed amount without the agreeing defendant's consent.
False
According to the assumption of risk, the plaintiff does not necessarily appreciate the character of the risk.
False
According to the rescue doctrine, a person can be found contributorily negligent for voluntarily placing him- or herself in a dangerous situation to save another.
False
According to the transferred-intent doctrine, if a tortfeasor intends to punch A but inadvertently punches B, that would be considered an unintentional tort.
False
Adherence to custom is conclusive evidence of the reasonableness of conduct.
False
Adherence to custom within an industry is conclusive evidence of reasonable behavior.
False
All states follow the Restatement of the Law of Torts.
False
All states require that a verification be submitted with the complaint.
False
An employer has a duty to protect employees from dangers from which they are not able to protect themselves, even if the dangers occur outside the scope of the employees' responsibilities.
False
An employer is not liable if an employee negligently delegates his or her authority to another person who in turn commits a tort.
False
An employer is not vicariously liable for acts committed by an employee if the employer had expressly forbidden the commission of such acts.
False
An employer who supervises the sequence of work performed by an independent contractor can be held liable for injury caused by the independent contractor.
False
Attorneys are allowed an unlimited number of peremptory challenges.
False
Automobile guest statutes cannot be used to limit duty of care.
False
Contribution is always allowed for both negligent and intentional tortfeasors.
False
Courts are more likely to find proximate cause in cases involving strict liability than in cases involving negligence.
False
Discounting a damage award allows the plaintiff to offset future inflation with present windfall.
False
During the twentieth century, legal scholars advocated that the purpose of tort law was to punish and deter inappropriate conduct rather than simply provide social justice.
False
Employers are never required to pay punitive damages for torts resulting from the acts of their employees.
False
For implied assumption of risk, it only needs to be shown that the plaintiff should have known of the risk involved.
False
For implied assumption of risk, professional athletes are not required to be more cognizant of the risks and more willing to accept them than amateurs.
False
For purposes of trespass to chattels, title is deemed to have transferred from the plaintiff to the defendant.
False
If a plaintiff is a user of a product rather than a purchaser, he or she cannot recover for breach of an express warranty.
False
If an intervention was not foreseeable but, in fact, led to the same type of harm as that threatened by the defendant's negligence, the courts typically find the intervention to be a superseding cause.
False
If several defendants act in concert to cause the plaintiff injury, but only one defendant directly causes the injury, only that defendant can be held liable.
False
If the defendant is unhappy with the outcome of the trial, he or she can file an appeal.
False
If the person who rents a car from a rental agency negligently injures a plaintiff while driving the car, the rental agency is vicariously liable for the acts of the person who rented the car.
False
If tortfeasors A, B, and C are jointly and severally liable for a $10,000 judgment and the plaintiff recovers the full amount from A, she can collect the same amount from B and C.
False
Ignorance of the law is an excuse under the reasonable person standard.
False
In contract law, a person is bound to act as a reasonable person to all other persons.
False
In determining whether a manufacturer must provide a warning on a product, the courts consider only the likely number and severity of accidents that are likely to occur if such a warning is lacking.
False
In determining whether strict liability should be imposed, all six factors of the six-factor test must be present.
False
In determining whether strict liability should be imposed, it is generally sufficient to find only one factor of the six-factor test present.
False
In interference with existing contractual relations, a defendant may be found liable if the defendant's conduct is negligent and improper.
False
In most jurisdictions today, the negligence of a driver is imputed to his or her passengers.
False
In situations involving vicarious liability, indemnity does not apply to defendants who are liable only because they failed to discover or prevent another's misconduct.
False
In the United States, the winning party in a personal injury case is entitled to recover litigation expenses.
False
In today's Information Age, the doctrine of caveat emptor (let the buyer beware) is the standard that is followed.
False
Infliction of mental distress occurs when the defendant acts unreasonably and causes mental distress to the plaintiff.
False
Interrogatories are one of the most useful types of discovery because of the almost unlimited information they can reveal.
False
Intoxicated individuals are held to a lower standard of care than others.
False
Jurors are not allowed to take into consideration a plaintiff's personal habits and individual characteristics in determining his or her recovery for future lost earnings.
False
Landlords may use force to evict tenants who have not paid rent.
False
Lawsuits against retailers on the basis of negligence are usually successful.
False
Manufacturers of component parts may be liable for their negligence but manufacturers who fail to use reasonable care in selecting component parts may not be held liable for their negligence.
False
Manufacturing defects are restricted to man-made products.
False
Parents are never liable for the intentional torts of their children.
False
People may not use force to defend their homes unless the person threatening them is inside the home.
False
Plaintiffs may recover for breach of express warranty only when they are in privity with the seller.
False
Plaintiffs suing under strict liability may recover for personal injuries but not property damages.
False
Plaintiffs who sue for trespass to land or trespass to chattels must prove actual harm.
False
Proximate cause is always construed more narrowly in the case of contributory negligence than in the case of a defendant's negligence.
False
Proximate cause is construed more narrowly in the case of a defendant's negligence than it is in the case of the contributory negligence.
False
Punitive damages cannot be awarded in product liability cases.
False
Regardless of whether a wild animal is kept in a zoo, courts hold owners to a strict liability standard.
False
Regardless of whether the benefits of an unavoidably unsafe product outweigh its risks, courts hold the manufacturer strictly liable for harm to consumers.
False
Some feel that the rule regarding proximate cause that evolved from Palsgraf could result in limitless liability.
False
Statutes are deemed to impose an absolute duty of compliance.
False
Strict liability and liability without fault are synonymous terms.
False
Strict liability applies to anyone who sells goods except lessors of goods and sellers of real estate.
False
Strict liability is also called absolute liability because no defenses can be raised in these cases.
False
Tenants cannot sue on the basis of a private nuisance.
False
The Restatement (Second) of Torts states that an "act of God" is an exception to strict liability.
False
The UCC severely limits what a plaintiff can recover for breach of warranty.
False
The Uniform Comparative Fault Act endorses the use of the last clear chance doctrine.
False
The Western states adhere to the English common law in terms of liability for trespassing animals.
False
The but-for test is less stringent than the substantial-factor test.
False
The concepts of duty and actual cause can be clearly distinguished from the concept of proximate cause.
False
The courts clearly distinguish between economic loss and property damage.
False
The courts generally agree as to what does or does not constitute an abnormally dangerous activity.
False
The courts have carefully categorized certain activities as abnormally dangerous and have considered fact variations as being essentially irrelevant.
False
The courts typically use a subjective standard in determining whether a defendant acted reasonably.
False
The key issue in a design defect case based on strict liability is the reasonableness of the manufacturer.
False
The only rationale behind contributory negligence is that plaintiffs should be punished for failing to protect themselves from harm.
False
The only way a defendant can rebut a claim of negligence per se is by claiming the plaintiff was contributorily negligent or assumed the risk.
False
The peculiar characteristics of the plaintiff are never taken into consideration when evaluating the defendant's conduct for purposes of liability for infliction of mental distress.
False
The per diem technique is an attempt to give a concrete value to punitive damages.
False
The purpose of a motion in limine is to determine whether the plaintiff has grounds to proceed with a trial.
False
The purpose of punitive damages is to restore a plaintiff to the position he or she was in before being injured.
False
The question of actual cause boils down to a question of foreseeability.
False
The question of contributory negligence is a question of law for a judge to decide.
False
The question of whether the defendant was the actual cause of the plaintiff's injuries is based on legal principles.
False
The rule of joint and several liability applies regardless of whether the harm can be apportioned.
False
The rule regarding imputation of negligence is upheld in most courts today.
False
The standard of proof in tort law is beyond a reasonable doubt.
False
The terms of Gallagher agreements are cloaked in secrecy.
False
The transferred intent doctrine is generally applicable in cases of false imprisonment and infliction of mental distress.
False
Threats of future harm are sufficient to constitute an assault.
False
To be found liable for negligent misrepresentation, it must be shown that the defendant received compensation directly.
False
To sustain a claim for public nuisance, the plaintiff must show that he or she suffered a substantial injury in a public place.
False
Under the 50 percent approach, a plaintiff can never recover if his or her negligence exceeds the negligence of any one defendant.
False
Under the English common law, animal owners were strictly liable for damages caused by any trespassing animals, including cats and dogs.
False
Under the English common law, owners of animals, including horses, cows, cats, dogs, etc., were liable for property damage caused when the animals trespassed on another's land.
False
Under the FTCA, an inmate of a correctional institution is prohibited from filing suit against an employee of that institution.
False
Under the modern rule, the contributory negligence of a bailee is generally imputed to the bailor.
False
Under the stressful conditions of an emergency situation, a defendant is not held to the reasonable-person standard.
False
Using a subjective standard, the defendant's conduct is compared to that of a hypothetical reasonable person.
False
Vicarious liability does NOT arise under the family purpose doctrine.
False
When given a choice, it is always preferable to sue on the basis of strict liability rather than warranty because strict liability is easier to prove than breach of warranty
False
Words alone can never constitute an assault.
False
Wrongful death actions are typically brought by the executor or the administrator of the decedent's estate.
False
A complaint has three basic elements.
False - four
Statutes that state an owner is not strictly liable if the owner attempts to fence in his or her animals but is strictly liable if the owner does not are called:
Fencing in statutes
What must a judge do before a jury can determine proximate cause?
Formulate the appropriate legal rule in the form of a jury instruction
According to legal scholar Cornelius Peck, compensation for pain and suffering does what?
Increases the victim's pain because it reinforces pain behavior
Indemnification differs from contribution in that:
Indemnification involves a shift of liability from one tortfeasor to another.
The party seeking to be indemnified is called an:
Indemnitee
Possessors of property owe some duty of care to trespassers who are:
Individuals known to be trespassers
Most private nuisance claims arise out of:
Intentional conduct
Torts include:
Intentional; Negligence; Strict liability
A possessor of property owes the highest duty of care to which of the following?
Invitee
The Restatement of the Law of Torts is criticized for the following reason:
It creates the impression of uniformity in the law where there is none.
Contributory negligence is based on:
Judge's Rule
If a landlord hires a contractor to make repairs and the contractor fails to complete the repairs, but the tenant is aware that the repairs are incomplete, who is liable for injury to someone on the property with the tenant's permission?
Landlord
Respondeat superior means:
Let the person higher up answer
The following is true of common law:
Local rules evolved into common law.
Structured settlements are used to:
Minimize income tax
A defendant can file which of the following in response to a complaint?
Motion
The most common category of tort law is:
Negligence
Contribution is defined as:
Partial reimbursement from joint tortfeasors to one of the tortfeasors who paid more than his or her pro rata share of the damages
The three types of losses that can be caused by defective products are:
Personal injury, property damage, economic loss
Which of the following would be considered contact for the purposes of battery?
Plaintiff's arm and purse
A famous case that illustrates direct causation is:
Polemis
The primary goal for those who advocate strict liability is:
Prevent future harm
The degree of factual detail required in the complaint is dictated by:
Procedural rules
Rationales for applying strict liability in product liability cases include:
Product safety is better promoted by a strict liability theory than by a negligence theory
A plaintiff who enters into a covenant not to sue:
Promises not to sue a particular defendant
To find the public policy underlying a law, the following must be considered:
Rationale
Which approach(es) do courts use when deciding whether the defendant has a duty to protect the plaintiff?
Relational and foreseeability
Damages for misrepresentation may be measured by:
Reliance measure
If the seller of a house is also the builder, who is held liable for injuries caused by defects to the house?
Seller
The but-for test is also called the
Sine qua non test
According to the collateral-source rule, the plaintiff may recover lost wages despite reimbursement from:
Social Security disability payments, welfare payments, and medicare payments
In concurrent-cause cases, modern courts most often apply the:
Substantial factor test
William Prosser, noted tort scholar, can be described in the following way:
Supporter of strict liability
Common law rules generally benefited:
Tenants
Damages from mental suffering are called "parasitic damages" because:
The emotional suffering attaches to the physical injury
Joint and several liability applies when:
The harm cannot be apportioned
Factor(s) taken into consideration when deciding whether a defendant has committed interference with existing contractual relations is (are):
The means used to create the interference
A disclosure statement must contain:
The name, address, and telephone number of each individual likely to have discoverable information the disclosing party may use
A motion to compel is appropriate when:
The opposing party refuses to produce discoverable material.
Under common law, when release is given to one defendant:
The other defendants are released from liability.
Plaintiffs benefit from Mary Carter and Gallagher agreements in that:
The plaintiff is able to present a more streamlined case.
One element of assumption of risk is:
The plaintiff must appreciate the character of the risk
In cases where damaged property has personal value to the plaintiff and no one else, the court usually considers:
The use made of the property
Waivers of liability are valid, unless:
The waiver involves public utilities or common carriers.
One of the pitfalls of punitive damages in negligence cases is:
They lead to a lengthy and rancorous discovery process.
A child is held to the standard of care of children of similar age, intelligence, and experience.
True
A contingency fee arrangement may create a conflict of interest between a client and his or her attorney.
True
A corporation whose negligence contributed to only 10 percent of the plaintiff's harm may be held totally responsible for the plaintiff's damages under the rule of joint and several liability simply because the more blameworthy defendant is penniless.
True
A counterclaim brought for the sole purpose of delaying a proceeding is grounds for a wrongful institution of civil proceedings suit.
True
A defendant can raise an affirmative defense in response to a complaint.
True
A defendant can use force only in response to imminent threats.
True
A defendant is liable for trespass even if the defendant's contact with the plaintiff's land is the result of a reasonable mistake.
True
A defendant is not strictly liable if the harm that occurs results from the plaintiff conducting an abnormally sensitive activity.
True
A defendant may be found liable even though the defendant has no legal duty to protect the plaintiff.
True
A defendant may be held liable for assault if, after scaring the plaintiff, the defendant abandons his or her plan to do harm.
True
A defendant that can raise a legitimate defense is not subject to contribution.
True
A defendant who exceeds the speed limit and injures someone as a result will be considered negligent per se.
True
A defendant who is reckless may rely on the defense of comparative negligence to reduce the plaintiff's recovery.
True
A defendant will not be strictly liable if the harm occurred only because the plaintiff was conducting an "abnormally sensitive" activity.
True
A demurrer is a motion for dismissal.
True
A joint venturer is vicariously liable for the negligent acts of other members of the joint venture of which he or she is a member.
True
A pedestrian who is run over by a truck transporting dynamite will not be able to sue on the basis of strict liability because the risk of hitting pedestrians is not one of the things that make such transportation abnormally dangerous.
True
A person who attempts to strike someone but misses has committed assault.
True
A person who is intoxicated is incapable of giving consent.
True
A person who rents a car from a rental agency is called a bailee, and the rental car company is called the bailor.
True
A person who throws water on another person during a heated argument has committed battery.
True
A plaintiff is entitled to only one satisfaction of a claim.
True
A plaintiff who agrees to have sex with the defendant because of his threat to blackmail her cannot claim duress.
True
A plaintiff who was contributorily negligent probably may not rely on the doctrine of res ipsa loquitur.
True
A seller of goods that makes misrepresentations on a label or through public advertising is strictly liable for any physical injury that results from such misinformation.
True
A superseding cause cancels out the defendant's liability.
True
A trespass consists of an interference with the plaintiff's right to possession of the plaintiff's property; a nuisance consists of an interference with the plaintiff's right to enjoy and use the plaintiff's property.
True
According to Mary Carter agreements, a defendant agrees to guarantee the plaintiff a certain amount of money if the plaintiff loses or recovers less than a stated amount. In return, the plaintiff agrees to refund part of the defendant's payment in the event of a verdict against the defendant in excess of a stated amount.
True
According to res ipsa loquitur, the plaintiff can create an implication that the defendant was negligent without providing direct evidence of that negligence.
True
According to the Restatement (Second) of Torts, an act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
True
According to the Restatement, an activity may be abnormally dangerous if the risk it creates cannot be eliminated using due care.
True
All states have passed statutes allowing some kind of survival action so that the victim's claim survives his or her death.
True
Although a defendant may not interfere with an existing contract for purposes of gaining business for him- or herself, the defendant may do so if only a potential contract exists.
True
An act can be both a crime against the state and a tort against an individual.
True
An attorney who is a certified criminal law specialist is held to a higher standard of care when practicing criminal law than other attorneys who do not specialize in that area.
True
An intoxicated person is held to the standard of a reasonable sober person.
True
An objective standard is used to assess the reasonableness of a defendant's conduct in cases of contributory negligence, while a subjective standard is used in cases involving assumption of risk.
True
Defendants responding to emergency situations are not held to the same standard of care as those acting in less stressful situations.
True
Design defect claims can be cast in terms of a negligence or strict liability standard.
True
Determining whether a breach of duty has occurred requires (1) a determination of the relevant standard of care and (2) an evaluation of the defendant's conduct in light of that standard.
True
Duty arises out of the special relationship that is created when a defendant begins to render assistance to a person in need.
True
Exposure to unpleasant sounds and odors may constitute substantial interference to justify suit for a private nuisance.
True
Half-truths can be the basis of a misrepresentation claim.
True
Historically, physicians were vicariously liable for the negligence of nurses, other physicians, paramedical personnel, and hospital administrators under their control, even if these persons were not under the doctor's employ.
True
If a consumer advocacy group indicates that a particular brand of off-road vehicle is safe and the plaintiff is injured in that vehicle, the consumer group's argument that its endorsement was merely an opinion is likely to fail.
True
If a defendant can raise a defense of immunity, which bars recovery by the plaintiff, the other defendants cannot seek contribution from that defendant.
True
If a dog has unsuccessfully attempted to bite someone, and it eventually does bite someone, the owner will be held to a strict liability standard.
True
If a fiduciary relationship exists between the plaintiff and defendant, or if the defendant purports to have special knowledge, the plaintiff may be justified in relying on the defendant's opinion.
True
If a landlord has reason to believe that the tenant is planning on holding the premises open to the public, the landlord has a duty to inspect the premises and to find and repair any damages.
True
If a parent gives her teenage son firecrackers and in using those firecrackers the teenage son causes a fire that burns down a neighbor's shed, the parent will be held liable for the damages.
True
If an employee intentionally injures another while doing his or her job, the employer will be held liable.
True
If an individual wants to use a mechanical device to protect his or her home, the homeowner must post a warning.
True
If the court sustains an objection to a question, that question cannot be asked.
True
If the employer hires someone who the employer knows will not perform the work safely, the employer can be held liable even if the injuries stem from the contractor's negligence.
True
If two young men are drag racing down a public street and one of them collides with a car and kills the driver, both young men will be held liable even though only one of them actually hit the car.
True
Immunity is a complete defense to tort liability.
True
In an action in trespass, damage to the plaintiff is implied.
True
Joint and several liability helps ensure that plaintiffs are fully compensated.
True
Justice Andrew's position parallels direct causation.
True
Manufacturers are not obliged to provide the most durable design in their products.
True
Manufacturers are not to be the insurers of their products. Therefore, they are required to warn only of those dangers they knew of, or should have known of, at the time of sale of the product.
True
Many courts that have abolished governmental immunity have done so because of the availability of public liability insurance.
True
Market share liability differs from res ipsa loquitur in that the latter is used when a plaintiff has no way of proving the nature of the defendant's conduct.
True
Misrepresentation as a distinct cause of action arose out of the common law action of deceit.
True
Most courts do not allow recovery under a strict liability theory for purely economic loss in the absence of personal injury or property damage.
True
Most courts will not hold a defendant liable if the defendant breaches a contract that is terminable at will.
True
Once a party admits a fact, that matter is conclusively established and cannot be argued at trial.
True
One area in which the courts are unwilling to uphold a waiver, no matter how well informed that waiver is, is in the field of medical care.
True
Possessors of land owe a limited duty of care to frequent trespassers who use only a limited area of their land.
True
Preventing future harm is a strong motivator for those who advocate strict liability.
True
Proof of intentional misrepresentation requires showing that the defendant knew of the falsity of the statement or acted with reckless disregard to the truth.
True
Punitive damages are also referred to as exemplary damages.
True