Chapter 9 Torts

18. Under the Children's Online Privacy Protection Act, websites are prohibited from collecting personal information from children regardless of whether parental consent is obtained.

False

7. Trespass to personal property and conversion are different names for the same tort.

False

17. Germany requires bystanders to try and help those in danger if trying to help will not put the bystanders at risk.

True

2. Intentional torts require the plaintiff to prove actual or implied intent.

True

20. A number of states have enacted statutes offering some protection to employers who make recommendations in good faith so that those who include negative information are not subject to a defamation suit by the former employee.

True

22. Tort damages generally attempt to restore the plaintiff to the same position he or she was in before the tort occurred.

True

4. Intent may be transferred.

True

____ occurs when an individual exercises dominion and control over the personal property, rather than the real property, of another. a. Conversion b. Trespass c. Involuntary deceit d. Both conversion and trespass

a. Conversion

Based on the text, if employees sue a company who transmits their names and Social Security numbers to managers in the company in an unsecured manner, how might a court rule? (See the Bodah v. Lakeville Motor Express, Inc. case.) a. The court might rule that a publication occurred and that the employees could proceed with a cause of action based on invasion of privacy. b. The court might rule that the employees had no right to privacy in relation to distribution of social security numbers because the numbers are issued by the government. c. The court might rule that the employees could not proceed with an action for invasion of privacy because no publication of the information at issue occurred. d. The court might rule that the employees could not proceed with an action for invasion of privacy because health information was not involved.

c. The court might rule that the employees could not proceed with an action for invasion of privacy because no publication of the information at issue occurred.

The U.S. Supreme Court has held that in order for a public official or public figure to recover damages for defamation by a media defendant, there must be a showing of a. intent. b. negligence. c. actual malice. d. invasion of privacy.

c. actual malice.

The Smiths are landscaping their backyard to include a Jacuzzi, outdoor covered bar with appliances, and fountain waterfall. The construction workers have left a small backhoe and other equipment over the weekend. No fences were erected around the equipment and unfinished work. Several neighbor children were climbing on piles of dirt and stones. While jumping from one pile to another, one child fell and suffered a broken leg. The parents of this child could sue for compensation of medical expenses under _____ even though the children had been trespassing. a. respondeat superior b. foreseeable trespasser c. attractive nuisance d. actual malice

c. attractive nuisance

A postoperative x-ray shows a surgical sponge left in a patient's stomach. Liability in this case is established by: a. assault and battery. b. negligence in good faith. c. res ipsa loquitur. d. mens rea.

c. res ipsa loquitur.

1. A tort is a type of civil or criminal wrong.

False

12. All but three states have enacted some type of medical tort reform, which generally caps the amount of noneconomic damages an injured plaintiff can recover in a lawsuit.

False

16. The tort of conversion requires that the defendant know that the goods belonged to the plaintiff.

False

19. In most states shopkeepers who detain and later release a shoplifter may be held liable for false imprisonment even if the detention was reasonable and based on reasonable cause.

False

21. The United States is regarded as providing adequate privacy protection under privacy laws of the European Union.

False

3. In CASE 9.1 Kubert v. Best (2013), the court ruled that an individual who is texting from a location remote from the driver of a car can be held liable for persons injured because the driver was distracted by the text message.

False

9. The tort of malicious prosecution protects the right to enjoy the benefits of legally binding agreements.

False

10. Assumption of risk is a defense to the tort of negligence.

True

11. The tort of intentional infliction of emotional distress protects a person's right to peace of mind.

True

13. The Federal Trade Commission takes the position that it is an unfair or deceptive trade practice under the Federal Trade Commission Act for firms to fail to honor their own privacy policies.

True

14. Trespass may occur below the surface of land.

True

15. Playing loud music late at night for recreation in a residential neighborhood can constitute a private nuisance.

True

5. A professional athlete injured during practice is deemed to have consented to the physical contact attendant to practice.

True

6. Contributory negligence means a defendant who is only 5 percent responsible for causing a plaintiff 's injuries will not be liable for more than 5 percent of the total damages awarded.

True

8. A single set of facts may give rise to claims under more than one tort.

True

CASE 9.1, Kubert v. Best (2013) examined the question of whether a third party who was not present, but was __________ the driver of the car who hit the plaintiff, had __________ the person who was injured. a. texting; a legal duty of care to b. talking to; a legal duty to c. texting; a legal defense to d. texting; distracted

a. texting; a legal duty of care to

Which of the following is true regarding battery? a. Battery is the negligent, nonconsensual, harmful, or offensive contact with the plaintiff's body or with something in contact with it. b. Battery is the intentional, nonconsensual, harmful, or offensive contact with the plaintiff's body or with something in contact with it. c. Battery is the intentional, consensual, harmful, or offensive contact with the plaintiff's body or with something in contact with it. d. Battery is the negligent, consensual, harmful, or offensive contact with the plaintiff's body or with something in contact with it.

b. Battery is the intentional, nonconsensual, harmful, or offensive contact with the plaintiff's body or with something in contact with it.

An intoxicated employee causes an automobile accident after drinking alcohol at a company function. Under what tort can the employer be held liable? (See the Lev v. Beverly Enterprises-Massachusetts, Inc., case.) a. An employer can be liable to the plaintiff injured in the accident, based upon the principle of vicarious liability b. An employer can be liable to the plaintiff injured in the accident, under an aided-in-the-agency theory. c. An employer can be liable to the plaintiff injured in the accident, based upon successor liability. d. The employer is never liable to the plaintiff injured in the accident.

a. An employer can be liable to the plaintiff injured in the accident, based upon the principle of vicarious liability

Which of the following is true regarding assault? a. Assault is an intentional, nonconsensual act that gives rise to the apprehension that a harmful or offensive contact is imminent. b. Assault is an intentional, nonconsensual act of offensive contact. c. Assault is a negligent, nonconsensual act that gives rise to the apprehension that a harmful or offensive contact is imminent. d. Assault is a negligent, nonconsensual act of harmful or offensive contact.

a. Assault is an intentional, nonconsensual act that gives rise to the apprehension that a harmful or offensive contact is imminent.

Which of the following is a provision under the federal Fair and Accurate Credit Transactions Act of 2003? a. Consumers can "flag" their credit files if they think they are at risk of becoming a victim of identity theft or fraud. b. A warrant is required to obtain historic geographic tracking information from an individual's cell phone service provider during a criminal investigation. c. Financial institutions must give notice to their customers before sharing personal information with other entities and give customers the right to opt out of disclosures to third parties. d. All employers are required to develop privacy policies and procedures to safeguard protected health information.

a. Consumers can "flag" their credit files if they think they are at risk of becoming a victim of identity theft or fraud.

______ is the publication of statements derogatory to the quality of the plaintiff's business, to the business in general, or to the plaintiff's personal affairs in order to discourage others from dealing with him or her. a. Disparagement b. Critical falsehood c. Defamation d. Malicious derogatorism

a. Disparagement

The Health Insurance Portability and Accountability Act of 1996 is better known as _____ and is meant to _____. a. HIPAA; ensure the privacy of personal medical information b. Obamacare; develop privacy policies and procedures to safeguard protected health information c. HITECH; provide notification of a breach of "unsecured protected health information" d. Omnibus Final Rule; prevent websites from collecting personal information from children under age 13 without parental consent

a. HIPAA; ensure the privacy of personal medical information

What does the term respondeat superior mean? a. Let the master answer. b. Let the servant answer. c. Let the servant or master answer. d. The master was negligent.

a. Let the master answer.

The wrongful interference with the right to the quiet use and enjoyment of land is associated with the tort of a. trespass. b. nuisance. c. ultrahazardous activities. d. strict liability.

b. nuisance.

Spoken defamation is known as a. libel. b. slander. c. malicious intent. d. invasion of privacy.

b. slander.

. In the classic case Palsgraf v. Long Island Railroad (1928), the court denied Mrs. Palsgraf's claim of negligence on the ground that her injuries were __________, therefore the railroad employee's actions were not __________ of her injuries. a. not foreseeable; a proximate cause b. not foreseeable; an actual cause c. the actual cause; representative d. not foreseeable; the intentional factor in the claim

a. not foreseeable; a proximate cause

Which of the following is subject to successor liability? a. A defendant who is the second person to physically harm an individual during an incident b. A defendant who stands guard at the door while a victim is falsely imprisoned c. A defendant who is a subsequent owner of a company held liable for producing a faulty product d. A defendant who sells personal information about clients to a business's competitor

c. A defendant who is a subsequent owner of a company held liable for producing a faulty product

Alex and Blake got into a heated argument because Alex purchased a car that Blake had test driven and was contemplating buying. Blake decided to scare Alex and drew back a fist to hit Alex. Blake stopped just before striking Alex in the nose. Alex yelled out, "You didn't scare me. I was ready for a fight!" Later, Alex decides to sue Blake and asks your advice on issues involving assault and battery. Refer to Fact Pattern 9-3. What would you tell Alex about the possibility of suing Blake for committing a battery? a. The necessary elements appear to be present for Alex to succeed in an action against Blake for battery as long as Alex can show apprehension of being struck. b. Alex could not win in an action for battery after admitting to not being afraid of Blake. c. Alex could not win in an action for battery because Blake did not actually strike Alex. d. Alex could not win in an action for battery because it appears that Blake's actions were justified.

c. Alex could not win in an action for battery because Blake did not actually strike Alex.

Frankie belongs to the same country club as Dr. Botto. Frankie found out that Dr. Botto, who recently treated Frankie but was no longer Frankie's doctor, has been telling their mutual friends at the club about Frankie's high blood pressure and problems with anxiety. Frankie is very angry, and confronts Dr. Botto on the golf course with the news that Frankie will be bringing suit under a federal law protecting medical information. Dr. Botto laughs and says in front of a number of Frankie's golfing buddies, "I'm not surprised that you're going nuts and that you have high blood pressure; you're so oversensitive." Refer to Fact Pattern 9-1. What right of action, if any, would Frankie have against Dr. Botto? a. Frankie has no cause of action against Dr. Botto because the law does not protect this type of invasion of privacy as long as Dr. Botto was being truthful regarding Frankie's health condition. b. Frankie could sue Dr. Botto under a federal statute enacted to protect privacy rights. c. Frankie could not sue Dr. Botto directly under any federal statute enacted to protect privacy rights, but could likely prevail in a common law action for the public disclosure of private facts. d. Frankie could not sue Dr. Botto under federal law for invasion of privacy nor under a common law cause of action, but only because Frankie was no longer Dr. Botto's patient.

c. Frankie could not sue Dr. Botto directly under any federal statute enacted to protect privacy rights, but could likely prevail in a common law action for the public disclosure of private facts.

Under the doctrine of __________ liability, once the court determines that multiple defendants are at fault, the plaintiff may collect the entire judgment from any one of them, regardless of the degree of that defendant's fault. a. joint and individual liability b. cumulative liability c. contributory liability d. joint and several

d. joint and several

Written defamation is known as a. libel. b. slander. c. malicious intent. d. invasion of privacy.

a. libel.

Alex and Blake got into a heated argument because Alex purchased a car that Blake had test driven and was contemplating buying. Blake decided to scare Alex and drew back a fist to hit Alex. Blake stopped just before striking Alex in the nose. Alex yelled out, "You didn't scare me. I was ready for a fight!" Later, Alex decides to sue Blake and asks your advice on issues involving assault and battery. Refer to Fact Pattern 9-3. What would you tell Alex about the possibility of suing Blake for committing an assault? a. The necessary elements appear to be present for Alex to succeed in an action against Blake for assault as long as Alex can show apprehension of being struck. b. Alex could not win in an action for assault after admitting to not being afraid of Blake. c. Alex could not win in an action for assault because Blake did not actually strike Alex. d. Alex could not win in an action for assault because it appears that Blake's actions were justified.

a. The necessary elements appear to be present for Alex to succeed in an action against Blake for assault as long as Alex can show apprehension of being struck.

Malin told Parker that Parker could park a farm tractor on Malin's land but only for one month. Two months later, Malin is annoyed because the farm tractor is still in the same place; and Parker refuses to move it. Which of the following causes of action, if any, would Malin have against Parker? a. Trespass b. Nuisance c. Negligence d. Trespass and nuisance, but not negligence

a. Trespass

Blake lives in a jurisdiction that applies joint and several liability along with the doctrine of contribution, and was involved in an unfortunate motor vehicle accident. Tony hit Blake's new Mercedes in the rear just as Cassidy crossed the center line and sideswiped Tony. Blake's car was severely damaged, and Blake suffered from whiplash for a few weeks. Blake sued both Tony and Cassidy. It was determined at trial that both Tony and Cassidy were negligent, that Blake was not negligent, that Tony was 60 percent responsible for Blake's injuries, that Cassidy was 40 percent responsible for Blake's injuries, and that Blake's total damages were $100,000. Refer to Fact Pattern 9-2. Assume Tony or Tony's insurer pays the entire amount and then attempts to recoup amounts from Cassidy. Could Cassidy be held liable for any amounts? a. Yes, Cassidy could be required to pay the proportional share under a contribution theory. b. Yes, Cassidy could be required to pay the proportional share under an indemnification theory. c. No, Cassidy could not be required to pay under either a contribution or an indemnity theory. d. No, Cassidy could not be required to pay but only because Cassidy was less at fault.

a. Yes, Cassidy could be required to pay the proportional share under a contribution theory.

Blake lives in a jurisdiction that applies joint and several liability along with the doctrine of contribution, and was involved in an unfortunate motor vehicle accident. Tony hit Blake's new Mercedes in the rear just as Cassidy crossed the center line and sideswiped Tony. Blake's car was severely damaged, and Blake suffered from whiplash for a few weeks. Blake sued both Tony and Cassidy. It was determined at trial that both Tony and Cassidy were negligent, that Blake was not negligent, that Tony was 60 percent responsible for Blake's injuries, that Cassidy was 40 percent responsible for Blake's injuries, and that Blake's total damages were $100,000. Refer to Fact Pattern 9-2. Assuming Cassidy has the financial resources or sufficient insurance, can Blake recover the entire $100,000 from Cassidy? a. Yes. b. No, but only because Cassidy was found to be less at fault than Blake. c. No, because joint and several liability is in effect. d. Only if Blake can establish that Tony is insolvent can the entire amount be recovered from Cassidy.

a. Yes.

Under the doctrine of __________, the plaintiff's negligence is an absolute bar to recovery against the defendant. a. contributory negligence b. comparative negligence c. contribution d. indemnity

a. contributory negligence

A court order prohibiting a defendant from continuing a certain activity would be called a(n) a. injunction. b. indictment. c. edict. d. due care order.

a. injunction.

What must a plaintiff show to successfully sue for malicious prosecution? a. That a prior proceeding was instituted against him or her maliciously and without probable cause or factual basis b. That a prior proceeding was instituted against him or her maliciously and without probable cause or factual basis, and that the earlier case was resolved in the plaintiff's favor c. That a prior proceeding was instituted against him or her negligently and that the earlier case was resolved in the plaintiff's favor d. That a prior proceeding was instituted maliciously, that the plaintiff was a public official or public figure, and that the earlier case was resolved in the plaintiff's favor

b. That a prior proceeding was instituted against him or her maliciously and without probable cause or factual basis, and that the earlier case was resolved in the plaintiff's favor

Frankie belongs to the same country club as Dr. Botto. Frankie found out that Dr. Botto, who recently treated Frankie but was no longer Frankie's doctor, has been telling their mutual friends at the club about Frankie's high blood pressure and problems with anxiety. Frankie is very angry, and confronts Dr. Botto on the golf course with the news that Frankie will be bringing suit under a federal law protecting medical information. Dr. Botto laughs and says in front of a number of Frankie's golfing buddies, "I'm not surprised that you're going nuts and that you have high blood pressure; you're so oversensitive." Refer to Fact Pattern 9-1. Is there any federal law prohibiting Dr. Botto from revealing Frankie's medical history? a. There is no such federal law. b. The Health Insurance Portability and Accountability Act prohibits the revelation of private medical information by health care providers. c. The Gramm-Leach-Bliley Act prohibits the revelation of private medical information by health care providers. d. The Physician-Nurse Privacy Act prohibits the revelation of private medical information by health care providers.

b. The Health Insurance Portability and Accountability Act prohibits the revelation of private medical information by health care providers.

Under the doctrine of __________, the plaintiff may recover only the proportionate amount of damages attributable to the defendant's negligence. a. contributory negligence b. comparative negligence c. contribution d. indemnity

b. comparative negligence

According to the text, is an employer negligent for failing to protect an employee from being attacked by a dog, regardless of whether the dog is known to have abnormally dangerous propensities? (See the Labaj v. VanHouton case.) a. An employer has no duties in regard to an animal on the premises because of the rule that animals cannot be absolutely controlled under any circumstances. b. An employer can be held strictly liable for failing to protect an employee from getting attacked by a dog, even if the dog is not known to possess abnormally dangerous propensities. c. An employer cannot be negligent for failing to protect an employee from getting attacked by a dog unless the dog is not known to possess abnormally dangerous propensities. d. An employer can be negligent for failing to protect an employee from getting attacked by a dog, even if the dog is not known to possess abnormally dangerous propensities.

d. An employer can be negligent for failing to protect an employee from getting attacked by a dog, even if the dog is not known to possess abnormally dangerous propensities.

Perry attempted to hit Bailey without good cause; but Bailey ducked, and Perry hit Adrian instead. Adrian had been looking the other way and did not see it coming and was shocked when the blow landed. Which of the following is true regarding the cause of action, if any, Adrian would have against Perry? a. Adrian would not have any cause of action against Perry because contact between them happened by accident. b. Based on the theory of transferred intent, Adrian would have a cause of action against Perry for assault. c. Based on the theory of transferred intent, Adrian would have a cause of action against Perry for assault and battery. d. Based on the theory of transferred intent, Adrian would have a cause of action against Perry for battery.

d. Based on the theory of transferred intent, Adrian would have a cause of action against Perry for battery.

Which of the following is not a part of the measure of compensatory damages? a. The cost to repair or replace an item b. The decrease in market value of an item c. Compensation for medical expenses d. Damages to deter others from engaging in similar conduct

d. Damages to deter others from engaging in similar conduct

52. Which of the following is true regarding what a plaintiff may recover under strict liability once the court determines that the activity is abnormally dangerous? a. The doctrine of comparative negligence determines the amount a plaintiff may recover. b. Only where respondeat superior is in evidence could any damages be collected. c. Evidence of due care would prevent an award of punitive damages under strict liability. d. Evidence of due care would prevent an award of punitive damages under a theory of negligence.

d. Evidence of due care would prevent an award of punitive damages under a theory of negligence.

Which of the following is the best defense to negligence? a. The plaintiff was a friend of the defendant. b. The defendant did not intend to harm the plaintiff. c. The defendant was concerned for the safety of the plaintiff. d. The plaintiff contributed to the plaintiff's own injuries.

d. The plaintiff contributed to the plaintiff's own injuries.

37. The tort of negligence does not include the element of a. duty. b. causation. c. fault. d. intent.

d. intent.