Negligence and Strict Liability

T or F In determining whether the defendant breached a duty, negligence law holds people with mental deficiencies to the same reasonable person standard as normal people.

False

T or F Under a pure system of comparative negligence, the defendant has no defense whatsoever when the plaintiff's percentage share of the negligence causing the injury is less than fifty percent.

False

Parsons, a pedestrian watching a construction project, sees that a metal beam being lifted by a crane is about to drop on some unsuspecting workers. Thus, he rushes to the scene to warn the workers. For his efforts, he is struck by the falling beam. He sues the construction company in negligence. Which of the following is true? Assume that the falling beam was caused by a breach of duty on the company's part. A. Parsons will recover against the company. B. Parsons will not recover, because it is not foreseeable that a pedestrian would run onto the scene of an accident such as this. C. Parsons will not recover, because he knowingly and voluntarily assumed the risk of being struck by the beam. D. b and c are both true.

A. "C" is not a correct answer because he did not really "voluntarily" assume this risk. Further, most reasonable people would probably say that when you/a defendant creates a risk like this, it's reasonably foreseeable that a person such as Parson's would try to come to the rescue of others and be harmed in the process - i.e., that's why "B" is wrong.

Which of the following is true about the so-called "tort reform" movement? A. One example of the movement's success is the tendency for states via their legislatures to make it more difficult for plaintiffs to recover punitive damages, or to limit their amount. B. Tort reformers blame the liability insurance "crisis" on the insurance industry and nothing else. C. Tort reformers like to use the courts to shoot down legislation making it tougher for plaintiffs to recover and/or restricting the damages they can receive. D. Tort reformers have had no practical successes despite their many years of agitation.

A. One example of the movement's success is the tendency for states via their legislatures to make it more difficult for plaintiffs to recover punitive damages, or to limit their amount.

Generally speaking, which of the following is least likely to subject to strict liability? A. The manufacture and sale of defective and unreasonably dangerous products. B. The practice of medicine C. Blasting D. On-the-job injuries.

B -- because this is providing a normal and everyday service, not a product!! See the strict liability outline in your University Readers textbook. A is wrong because that is the test for strict product liability when defective products are involved. B is wrong because blasting is an ultra hazardous activity. D is wrong because this is a workers' compensation situation.

Potter dies in his sleep from smoke inhalation caused by a hotel fire. Although the fire was not the hotel's fault, Potter's estate sues the hotel in negligence for maintaining inadequate fire exits. Which of the following is most true? You can assume that the hotel's fire exits were in such terrible shape that they amounted to a breach of duty under the reasonable person standard. Due to lenient local laws, however, they did not violate any statute or regulation. A. The hotel is not liable because it did not violate any statue or regulation B. The hotel is not liable because its breach of duty was not an actual (or but- for) cause of Potter's death. C. The hotel is not liable because Potter assumed the risk of encountering inadequate fire exits by purchasing a room at the hotel. D. The hotel is liable to Potter here.

B. Note that in the question I underlined "for maintaining inadequate fire exits". Read the question closely ... you will see that he died in his sleep from smoke inhalation - not from waking up and not being able to get out of the building due to inadequate fire exits. The hotel may have been negligent with regard to the fire exits, but, that negligence did not CAUSE Potter's death. Stated differently, the causation element fails.

Ace, an amateur scientist, negligently mixed two chemicals he should not have mixed. As a result, a massive explosion occurred on his property. The explosion knocked down power lines, interfered with the normal flow of electrical current, and caused a freak surge of electricity at the home of Betty, who lived one mile from Ace's property. The surge of electricity started a substantial fire at Betty's home. The smoke from the fire at her home damaged the wallpaper in the home of Betty's next-door neighbor, Clyde. Clyde brings a negligence suit against Ace. Which of the following is the strongest argument for Ace to make in an attempt to avoid being held liable? A. That he did not intend to cause any harm to Clyde's property. B. That Clyde only suffered property damage rather than personal injury. C. That Clyde's damage/injury was too remote a consequence to be regarded as proximately caused by Ace's negligence. D. That the initial explosion described above was a superseding cause, which should relieve Ace from liability.

C. "D" is not the answer because the explosion was a natural result of his negligent act and it was NOT a new independent and outside event/force that came in and injured the plaintiff. This question is testing your ability to apply causation rules and principles.

Today, a "tort reformer" is someone who wants to: A. Help more injured plaintiffs recover more money. B. Make tort law more clear, coherent, and rational through uniform legislation. C. Deal with the "insurance crisis" by limiting plaintiffs' ability to recover and/or the amount they can receive. D. Get rid of negligence law and replace it with strict liability.

C. Deal with the "insurance crisis" by limiting plaintiffs' ability to recover and/or the amount they can receive.

Due to Dave Defendant's negligent driving, his car collides with a car driven by Myra Mason. As a result of the collision, Myra's car collides with a telephone pole, causing it to fall. The falling pole then takes out some electrical power lines. The resulting power outage causes the heater in Frank Fish's aquarium to go out, killing ten of his valuable tropical fish. Frank sues Dave in negligence. In this case, the best reason why Frank will not recover is that: A. The loss of his tropical fish is not "actual injury" B. There is no actual (or "but-for") causation between the breach of duty and the injury. C. There is no proximate causation between the breach of duty and the injury. D. The falling telephone pole is an unforeseeable superseding cause.

C. I.e., the forseeability test of proximate causation is not satisfied. The answer is not "D" because the explosion was a natural result of his negligent act -- it was not a new independent and outside event/force that came in and injured the plaintiff.

Dick Driver carelessly smashes his car into the rear end of another while driving on a busy street. Although Dick had no way of knowing this, the other car's trunk was filled with dynamite. The collision causes the dynamite to explode. The explosion miraculously misses Dick, but it causes the shattering of a window on the third floor of a nearby office building. The falling glass cuts Pete Pedestrian,who was walking on the street below. Dick will not be liable to Pete in negligence because: A. There is no breach of duty on these facts, because Dick could not have known that there was dynamite in the trunk. B. There is no actual or "but-for" causation between Dick's breach and Pete's injury. C. There is no proximate causation between Dick's breach and Pete's injury. D. The car owner's contributory negligence in leaving the dynamite in the trunk relieves Dick of any liability

C. Most reasonable people would most likely say that the reasonable foreseeability test of proximate causation is not satisfied here and that is why "C" is the right answer. (See the negligence material (causation) in the outline in your University Readers textbook.

Which of the following personal traits or conditions will not change the normal reasonable person standard to which defendants are subject? a. Blindness b. Deafness c. Voluntary intoxication d. Childhood

C. See the negligence material (duty) in the outline in your University Readers textbook. With respect to "C", under the law in civil negligence cases voluntary intoxication is not the same thing as a biological defect/condition. With respect to "D", obviously, children cannot/should not be held to a reasonable adult person standard so that is why D is not the correct answer.

Fred Sweet runs one of those Arthur Murray-style dancing classes for middle- aged and elderly people. Some of Fred's customers lack physical coordination, and injuries from kicks, falls, etc. are more common than you'd think. Fred naturally fears that injured customers will sue him in negligence. Thus, he makes each customer sign a written contract containing a clause (called an exculpatory clause) relieving Fred of all liability for injuries suffered during his dancing classes. However, fearful that he will lose business if potential customers become aware of his strategy, Fred states the clause in fine print and doesn't point it out to them. An injured customer sues Fred in negligence. Fred wants to defend on the basis of the clause in the contract. Which of the following is the biggest weakness in Fred's position? A. That Fred tried to use an exculpatory clause at all, because such clauses are invalid on public policy grounds. B. That Fred tried to use an exculpatory clause to relieve himself of negligence liability. C. That Fred has superior bargaining power, which makes customer's acceptance of the exculpatory clause involuntary. D. That Fred used a fine-print exculpatory clause, which means that the customer lacked knowledge of the clause's existence and therefore should not be bound by it.

D -- and therefore, his customers did not "voluntarily and knowingly" assume this risk. See the negligence material (assumption of risk defense) in the outline of your University Readers textbook - for the assumption of risk defense to work, the plaintiff must have "knowingly" and "voluntarily" assumed a "known and specific risk"!!

Which of the following people is most likely to have committed a breach of duty and to be liable for negligence? A. A two year-old child who starts a forest fire after playing with matches in a dry area. B. A person without a sense of smell who causes an explosion by lighting a cigarette in a room filled with flammable gas that has an odor. C. A mentally retarded person who started a forest fire by playing with matches in a dry area, and who lacked the mental ability to appreciate the risk involved in doing so. D. A person who causes an auto accident after suffering a blackout while driving a car, and that person had had periodic blackouts before.

D. "D" is the right answer because presumably if such a person had had blackouts before, wouldn't it be reasonably foreseeable that another one would/could occur while driving, and that person therefore had a "legal duty" under negligence law to not drive??

Phil Plaintiff is injured following the negligent behavior of Doris Defendant. His potential recoverable losses total $10,000. A jury determines that Doris's share of the negligence causing the injury was 40% and Phil was 60%. In a mixed comparative negligence state, Phil will recover: A. $10,000 B. $6,000 C. $4,000 D. Nothing

D. Nothing

To which of the following classes of cases does strict liability not apply? A. Ultrahazardous or abnormally dangerous activities B. Employee injuries covered by workers' compensation. C. Injuries caused by the sale of defective and unreasonably dangerous products. D. Strict liability applies in all of the above cases.

D. Strict liability applies in all of the above cases.

Under a "mixed" system of comparative negligence: A. The defendant has a complete defense even if the plaintiff departed only slightly from what a reasonably self-protective person would have done under the circumstances. B. The plaintiff will recover all $10,000 where his actual losses total $10,000 and the defendant is 60% at fault. C. The plaintiff will recover $4,000 where his actual losses total $10,000 and the defendant is 40% at fault. D. The plaintiff will recover nothing where his actual losses total $10,000 and the defendant is 40% at fault.

D. The plaintiff will recover nothing where his actual losses total $10,000 and the defendant is 40% at fault.

T or F The "tort reform" movement is aimed at eliminating all the loopholes through which tort defendants escape liability to deserving plaintiffs.

False. It's aimed at making it more difficult for plaintiffs to recover against defendants in product liability actions.

T or F Basically, negligence is a subjective mental state of inattention, a failure to think, etc.

False. It's objective ... based on the mythical "what would a reasonable person have done" standard.

T or F The aim of the tort reform movement is to make it easier for deserving tort plaintiffs to recover.

False. It's really the exact opposite - aimed at making it more difficult for such plaintiffs to recover in such civil tort cases.

T or F D builds a fire on a windy day. The wind is blowing before and during the time when D builds the fire. The wind is an intervening force or intervening cause.

False. Note: an intervening or superceding cause is a new/different force or cause that appears after the defendant's initial negligent act. Here, the wind was already blowing in existence at the time of the defendant's negligent act.

T or F In a strict liability case, the plaintiff still must prove a breach of duty on the defendant's part.

False. This is NOT an element of strict liability, only negligence. Don't confuse/commingle these two torts!!

T or F In a case involving an ultrahazardous or abnormally dangerous activity, the plaintiff must prove recklessness on the defendant's part. Any lower fault standard would be unfair to the defendant in such cases.

False. This is a situation where strict liability is applied! So, recklessness has nothing do to with it/is not an element of strict liability.

T or F In many cases, a blind person will be held to a different standard of reasonable care than a person who can see.

True

T or F Negligence defendants are not liable for the consequences of an unforeseeable, intervening (or superceding) cause.

True

T or F One of the factors courts/juries consider when determining how a reasonable person would have behaved is the social utility of the defendants conduct.

True

T or F Proximate causation (which is based on forseeability) presupposes the existence of actual (or but-for causation); and as a practical matter, you can't have the former without the latter.

True

T or F Under a "mixed" comparative negligence system, a plaintiff recovers nothing where the plaintiff's own negligence was more than 50% (or 50% or more) responsible for the plaintiff's injury.

True

T or F Contributory negligence is not a defense in strict liability cases.

True. Comparative fault/negligence is, but not contributory negligence per se.

T or F To say that a breach of duty is an actual cause of the plaintiff's injury is to say that if the breach had not happened, the injury would not have occurred either

True. This is just a different way of stating/describing the "but-for" test that goes with actual causation.