Tort Law Final
the declarations page
The name of the page of an insurance policy that discusses the policy limits is called: the signature page the declarations page the cover sheet. the title page.
libel per say
The newspaper writes an article stating Higley is a convicted felon. What type of defamation action may Higley bring? slander libel per se libel defamation
Premium
The payment that is the insured's obligation to pay to the insurance company is called: stipends. fees. premium. dues.
That the defendant contributed to his own injury (Contributory Negligence).
The plaintiff and the defendant live in a state that requires bike helmets for minors. The plaintiff, a minor, is not wearing a bike helmet when defendant's negligent driving forces him off the road. The plaintiff if injured much more than the plaintiff would have been had he been wearing a helmet. What will the defendant argue?
and and c, but not b.
The plaintiff has been injured by joint tortfeasors. The plaintiff can recover: A.100% altogether from one defendant B.100% from each defendant C.100% altogether from all defendants D.a and c, but not b
True
The plaintiff in a civil case is the victim. True False
The plaintiff will win, but only receive nominal damages.
The plaintiff was able to prove all elements of negligence, with the exception of damages. What is the likely result? The plaintiff has not shown all elements of negligence, so she will recover nothing. The plaintiff will win and be given punitive damages for the principal. The plaintiff will win and receive compensation damages. The plaintiff will win, but only receive nominal damages.
Complaint
The pleading which begins a lawsuit in a civil action. answer default complaint demurrer
A fenced vegetable garden.
Which of the following is NOT an example of an attractive nuisance? an abandoned well a swimming pool a fenced vegetable garden a backhoe, left unattended
B. Whether it was foreseeable the plaintiff would be injured.
Which of the following is a way in which to determine when a person owes a duty to another person? A. Whether the defendant knew the plaintiff prior to injury. B. Whether it was foreseeable the plaintiff would be injured C. Whether the plaintiff was in the defendant's zone of danger. D. Whether the defendant had a last clear chance to to avoid the plaintiff.
4. driving while intoxicated
Which of the following is gross negligence? 1. Driving 5 miles over the speed limit 2. driving while tired 3. Driving while drinking a coca cola 4. driving while intoxicated
an off-duty hospital admininstrator
Which of the following is least likely to be protected by Good Samaritan laws? an off-duty doctor a hospital administrator a doctor a nurse
lack of intent
Which of the following is not a defense to negligence? statute of limitation assumption of the risk lack of intent comparative negligence
A paralegal should prepare summaries of medical records by topic or chronology.
Describe how a paralegal should prepare summaries of medical records.
True
People who repeat defamatory statements can be held liable. True False
Lack of Knowledge
Which of the following cannot excuse a violation of statute? lack of intention emergency lack of knowledge incapacity
True
Words are not necessary for a fraud cause of action. True False
Liable or not Liable
The jury's options for deciding a civil case: Guilty or not guilty Nolo contender Responsible or not responsible Liable or not liable
Special Damages
Which damages are most objective? special damages punitive damages general damages nominal damages
an intervening cause
A cause occurring after the tortfeasor's negligent act that contributes to the victim's injury is: a substantial cause a superseding cause a concurrent cause an intervening cause
False
A civil case and a criminal case cannot rise from the same events. True False
False
A counterclaim is a claim against a co-defendant. True False
False
A defendant acting in an emergency situation is not held to any standards of care. True False
False
A defendant can decide whether to proceed under a defense of comparative or contributory negligence. True False
False
A defendant can only use the self-defense defense after he has been injured. True False
Yes, these facts will give rise to a negligence per se action because the driver violated a safety statute that was designed to prevent this type of accident from happening to students.
A driver is going 40 per hour in a 25 mile per hour, school zone. The driver hits a student crossing the road at the cross-walk, because the driver was speeding. Will these facts give rise to a negligence per se action?
volunteering to help a family member
A lawyer is seeking to satisfy his voluntary pro bono publico service through providing free legal services. Which of the following will not satisfy this requirement? volunteering to help his alma mater volunteering to help his church volunteering to help the poor volunteering to help a family member
The Learned Hand Formula weighs the burden of taking precautions against the likelihood and potential severity of an injury. The formula is abbreviated as Burden < Probability x Severity of Loss. The burden here is minor, placing a child-proof cap on a bottle. The probability of a child drinking the cough syrup is high because the syrup is brightly colored and has pictures of fruit on the container. The severity of a child drinking the cough syrup is unlikely to result in death, but the child will likely become ill from drinking the cough syrup, so the company should place a child-proof cap on the bottle.
A manufacturer manufactures children's cough syrup in bright colors with pictures of fruit on the outside of the container. The cough syrup is poured from a bottle that does not have a child proof cap. Use the Learned Hand Formula to determine whether or not placing a child proof cap on the bottle was reasonable on the manufacturer's behalf.
the name of all the doctor's staff who will provide the information
A medical authorization does not need to have which of the following elements: a description of the information to be disclosed the name of all the doctor's staff who will provide the information the date the authorization expires the name of the attorney's office who is going to receive the information
Pre-trial motion on the evidence
A motion in limine is a: a motion requesting more time a post-trial motion on the evidence during trial motion on the evidence pre-trial motion on the evidence
False
A part-time employee is an independent contractor. True False
True
A person can be qualified to testify as a witness at trial if he saw the incident in question.
The families will argue res ipsa loquitur, because without negligence, it is unlikely the plane would have fallen from the sky.
A plane falls from the sky and no evidence can be obtained from the black box. What will the family of the victims argue?
True
Aggressors usually cannot claim self-defense. True False
With this example, the pin could have entered the candy either negligently or intentionally. Another issue is who intentionally or negligently placed the pin into the candy. The pin could have been placed in the candy after it left the candy manufacturer. Therefore, Alexander is unlikely to prevail against the candy manufacturer.
Alexander goes trick-or-treating. He comes home with a lot of candy, including some salt water taffy. He bites into a salt water taffy, and is severely poked by a pin. Will Alexander be able to prevail against the salt water taffy company?
False
All the plaintiff has to do to prove a breach of duty is to provide evidence he was injured. True False
People are free to assume the risk of another's negligence via an express agreement. However, note that this case involves intentional misconduct. Further, the blanket clause probably does not cover getting beaten up in the parking lot. Allen did not know of the risks because he did not read the release and the release did not mention this risk by name.
Allen goes to a country music concert. The back of his ticket says: "By purchasing this ticket, the bearer of the ticket has expressly assumed any and all risk of injury associated with attending this event." Allen does not read the back of his ticker prior to the concert. At the concert, the independently run concession stands over serve alcohol and fans start to get rowdy. As Allen is attempting to leave the concert and go home, he is jumped in the parking lot by some drunk, rowdy fans. Allen attempts to sue the concert promoters for his injuries, as the drunk, rowdy fans have little money. Did Allen expressly assume the risk of being beaten up? What about impliedly?
True
Although most dogs are considered domesticated animals, pit bulls have been ruled to be abnormally dangerous so that owners will be strictly liable for injuries caused by pit bulls. True False
True
An example of a products liability lawsuit is breast implants that leak silicone into the person's body. True False
True
An example of demonstrative evidence is a photograph of the gun used in the shooting.
True
An expert should be a specialist in the subject matter of the litigation.
False
An immunity provides protection to someone who did not commit an intentional tort. True False
A freak accident.
An unavoidable accident is what?
True
Assumption of the risk is a defense to nuisance. True False
The ideas of the attorney while working on the case
Attorney work product includes which of the following: the memorandum of points and authorities the trial brief the exhibits the ideas of the attorney while working on the case
True
Attorneys who represent the defendants on a case are normally compensated by the defendants' insurance companies. True False
True
Both the plaintiff and defendant have a duty not to injure the plaintiff. True False
True
Business records are exceptions to the hearsay rule. True False
Yes, the defendant can argue that the injury which did occur to the plaintiff was not the type of injury that normally flowed from using the defective product.
Can a defendant ever argue lack of proximate cause in a strict liability case?
No, because an unconscious person cannot feel fear or apprehension of an act.
Can a person who is not conscious be assaulted?
Clark did not have a legal duty to help Hubert, but once Clark decided to help Hubert, Clark was under a legal obligation to not put Clark in a worse position, i.e. by forcing Clark into deeper water.
Clark is laying on the beach sun tanning, when he sees Hubert, a child of about 5 years old, start to drown. Clark looks up and down the beach, but does not see a life guard or the child's parents. Clark decides to save the child, but when Clark goes into the water after Hubert, Hubert swims away from Clark, as Hubert is scared by Clark. Did Clark have a legal duty to help Hubert? Once Clark started to help Hubert, did Clark have a legal duty not to put Clark in a worse position?
Claudia will not be able to recover in a state with the impact rule because she was not impacted.
Claudia is looking out her window, waiting for her friend Caroline to arrive. While she is looking out her window, she sees Caroline drive up, park across the street from her house and get out of the car. As Caroline starts to cross the street, Claudia sees a car reeve up its engine and hit Caroline. What will the result be if Claudia sues in a state with the impact rule?
True
Complaints have to set out the reasons a court has jurisdiction over the case. True False
True
Consent is a defense to all intentional torts. True False
True
Contribution means no tortfeasor is compelled to make contributions beyond his pro rata share of liability. True False
True
Contributory negligence benefits corporate America. True False
Danielle's loss of leg will require her to have the same standard of care as a reasonable person who had lost one leg.
Danielle only has one leg, and accidentally stumbles and falls on the plaintiff, injuring him. How will her loss of one leg affect Danielle's required standard of care? Danielle's loss of her leg will increase her responsibility towards the plaintiff. Danielle's loss of her leg will decrease her responsibility towards the plaintiff. Danielle's loss of leg will require her to have the same standard of care as a reasonable person, who has lost one leg. Danielle is excused entirely from any negligence on her part.
The but-for test imputes a defendant with liability if the plaintiff would not have been harmed but-for the defendant's negligence. The substantial factor is a narrower test. A defendant is liable to the plaintiff if the defendant's conduct was a primary cause of the plaintiff's injuries. The substantial factor test should be used in instances where concurrent causes combine together to cause one undividable harm.
Describe the but-for test and how it differs from the substantial factor test.
True
Dillon holds that a relative who is not at an accident scene cannot recover for emotional distress.
False
Direct evidence cannot be ascertained through hearing.
A manufacturing defect.
Edmund buys a portable phone. His phone does not work, but after he returns the phone for a new one, the second phone does work. The first phone is an example of: a manufacturing defect no design defect, because he misused the phone a design defect to just one phone a design defect of all phones
True
Electronic discovery should be produced even before a discovery request. True False
No, because Anna was not physically threatening her.
Evelyn is really angry at Anna for stealing her boyfriend. The next time Evelyn sees Anna, she slaps Anna. Was Evelyn legally justified in doing so? yes, because Evelyn acted in the heat of passion. no, because Anna was not physically threatening her. no, because Evelyn did not catch her boyfriend and Anna in the act. yes, because Evelyn was just protecting what was hers.
True
Even if a wild animal has been gentled, owners of wild animals will be strictly liable for injuries caused by the wild animal. True False
The majority of states will not hold a defendant liable for defending another, so long as the force used was reasonable and the defendant was reasonable in believing the person needed defense.
Even if the amount of force used is reasonable, can a defendant be liable for using force to defend another? Why?
True
Even if the plaintiff can successfully raise all the elements of a cause of action, an affirmative defense means the defendant is not liable. True False
True
Expert witnesses can testify as to their opinion about whether a duty was breached True False
True
Experts should be objective
In negligence, the defendant's intent is not a factor, rather the defendant's reasonable or unreasonable care is. In an intentional tort, the defendant's intentional act is being looked at.
Explain how negligence is different from an intentional tort.
Vicarious liability imposes liability on a defendant or the acts of another person, even though the defendant did not commit any wrongdoing himself. The family automobile doctrine places liability on the owner of a car for wrongdoing committed by family members who have the owner's permission to drive the car. Normally, the owners of the car will have more assets. Also, the owners of the car should be held responsible for the actions, especially of minor children, in their operation of the car.
Explain how the doctrine of vicarious liability works within the family automobile/purpose doctrine.
Negligence per se allows the plaintiff to prove a breach of duty by the defendant's violation of a statute. The statute should be a safety statute.
Explain negligence per se
The collateral source rule does not allow the plaintiff to receive more than 100% in total. If the plaintiff has already had part of his loss compensated for by his own insurance company, usually the plaintiff's award goes in part to paying back the insurance company. However, at trial, the defendant is not allowed to bring up evidence that the plaintiff's injuries have already been compensated.
Explain the collateral source rule.
Public nuisance interferes with a right common to the general public. Private nuisance interferes with a particular plaintiff's use or enjoyment of his land. Private nuisance normally involves two neighbors. The parties who must bring each type of nuisance are different. In a private nuisance case, the party will be an individual. In a public nuisance case, the government is typically the party bringing the suit.
Explain the difference between a public and private nuisance. Are the parties who must bring each type of nuisance different?
Some states hold that assumption of the risk is illustrated by a sense of adventure, while contributory negligence is illustrated by carelessness. The tests used to evaluate both are different as well. Assumption of the risk is a subjective standard while contributory negligence is an objective standard. Some states consider assumption of the risk to be part of contributory negligence.
Explain when a plaintiff is contributorily negligent versus a plaintiff who has voluntarily assumed the risk.
True
Exposing someone to loud sounds and noxious odors can equate to substantial inference with the land for purposes of private nuisance. True False
True
Express warranties can be a description of the product. True False
True
Failure to disclose a murder on a property up for sale has been found to be misrepresentation in several courts. True False
Publication means the statement was either heard or read by another person, other than the plaintiff.
For purposes of defamation, what does publication mean?
C. Causation
Foreseeablity is most related to which element of negligence? A. Duty B. Breach of Duty C. Causation D. Injury
Yes, under the reasonable person standard, Francois would be liable to Bartlett because it is an objective, and not subjective test.
Francois has slow motor-coordination skills and is unable to swerve to avoid hitting Bartlett, who is riding his bike in across the street. A reasonable person would have been able to react more quickly and avoid Bartlett. Is Francois liable to Bartlett?
True
Fraud can be litigated in both civil and criminal court. True False
An intervening cause is conduct contributing to the harm to the plaintiff, but which occurs after the defendant's negligence.
Give an example of an intervening cause.
But-for Godwin swinging his arms, Simone's menorah would not have been broken.
Godwin is walking down the street, swinging his arms wide. He passes by Simone, and his arm catches a package in her hands, causing it to drop. The package contained a special menorah, which had been in Simone's family for years. Which of the following tests should be applied? Godwin's swinging his arms was a concurrent cause, along with Simone carrying her menorah, which caused the menorah to be broken. Godwin's swinging his arms was the actual cause of Simone's menorah being broken. Godwin's swinging his arms was a substantial factor in Simone's menorah being broken. But-for Godwin's swinging his arms, Simone's menorah would not have been broken.
During an opening statement, the attorneys are usually outlining the different evidence they will be presenting. During a closing statement, the attorneys are trying to cinch the deal, or sway the jury to vote in their side's favor.
How are opening and closing arguments different in what the attorney tries to accomplish during each?
Negligence per se is based on the defendant's violation of a safety statue. Res ipsa loquitur is based upon such an unusually caused injury where the object that caused the injury is completely in the control of the defendant.
How are the concepts of res ispa loquitor and negligence per se different?
costs of the copying. The paralegal can have the legal guardian of the client request the records. The paralegal can ask for an authorization and receive the medical records herself. Lastly, a paralegal can subpoena records.
How can a paralegal go about obtaining medical records in a case?
An activity is abnormally dangerous if reasonable care cannot eliminate the risks inherent in the activity. Examples of abnormally dangerous activities include having wild animals as pets and storing explosives. The locale of the activity can affect whether it is found to be abnormally dangerous. Activities are more likely to be found abnormally dangerous if they occur around a high population of people.
How do courts determine what is an abnormally dangerous activity? Can the locale of the activity affect whether it is found to be abnormally dangerous?
In a subjective standard, whether the particular defendant thought he behaved reasonably was the issue. In an objective standard, the defendant's conduct is compared with that of a reasonable person. The reasonable person standard asks what would a reasonable person have done in the defendant's position.
How does a subjective standard work compared to an objective standard?
Negligence per se carries the presumption that a defendant had a duty and the defendant breached that duty. Negligence per se proves two of the four elements of negligence. A presumption is an inference which tends to prove the truth or falsehood of a fact. However, presumptions can be rebutted. If the defendant can show that he acted as he should have, even if he acted in violation of a statute, then the defendant will have rebutted the presumption of negligence per se.
How does being able to successfully argue the case is a negligence per se case help the plaintiff?
A defendant must take the plaintiff as she is. If the plaintiff is more likely than an average person to suffer a worse injury due to the defendant's actions, the defendant cannot pay the plaintiff damages in the amount an average person would have needed. Rather, the defendant must pay the plaintiff for the greater damages she has.
How does the eggshell plaintiff rule effect the amount a defendant may have to pay in damages?
by looking at the defendant's actions and comparing them to what a reasonable person would have done under similar circumstances
How is breach of duty determined? by looking at what the defendant intended by negligence per se, always. by asking the people at the scene what they thought the defendant intended. by looking at the defendant's actions and comparing them to what a reasonable person would have done under similar circumstances.
The costs will be either the replacement value or the repair costs, whichever is cheaper.
How is damage to property calculated?
Nuisance deals with an interference a plaintiff's right to use or enjoy his land. Trespass deals with the plaintiff's right to possess his land.
How is nuisance dissimilar to trespass to land?
The plaintiff's reputation can be merely tarnished with a minority, not majority, of the community in order for the plaintiff to recover in defamation. The plaintiff's character or business must be affected.
How much must a plaintiff's reputation be damaged for the plaintiff to recover in defamation?
The Substantial Factor Test
Identify the name of the test used to determine proximate cause when the defendant was a major cause of the plaintiff's injury. the substantial factor test proximate cause the but-for test intervening cause
The But-For Test
Identify the name of the test used to determine proximate cause when the plaintiff would not have been injured if it were not for the defendant. the substantial factor test proximate cause the but-for test intervening cause
Loss of consotritumq
Identify the type of claim usually brought by the plaintiff's spouse. pain and suffering claim lost wages claim loss of consortium survival action
False
If Augustus is driving on the freeway in Colorado, he owes a duty of care to the drivers in New Mexico. True False
No, Kathy was not reasonable in continuing to drive her car, because a reasonable person would have had the brakes checked.
If Kathy is driving her car, and each time she drives it, she has to press harder and harder on the brake pedal to brake until the brake pedal goes all the way to the floor when she brakes, was it reasonable for her to continue driving her car? What if she injured someone as a result of her brakes failing?
False
If a defendant's negligent actions were closest in time to the plaintiff's injuries, the defendant will surely be found liable under proximate cause. True False
True
If a party fails to respond to requests for admissions, those requests will be deemed to be admitted. True False
False
If a plaintiff is at all at fault, she cannot recover under comparative negligence. True False
True
If a state is a comparative negligence state, the doctrine of last clear chance does not normally apply. True False
True
If an employee injures a plaintiff while on the job, the employer may also be liable to the plaintiff. True False
True
If the plaintiff fails to mitigate her damages, she may have her recovery reduced. True False
False
If the plaintiff has already had her medical treatment provided by her health insurance, she cannot seek payment from the defendant for her medical treatment. True False
True
If the seller of the product becomes aware of a defect in a product but does not warn the consumers of the product about the defect the manufacturer may avoid liability True False
Each defendant is responsible for the entire amount of harm. The plaintiff was injured by multiple defendants and can obtain her recovery from all of the defendants, some of the defendants, or one of the defendants. The plaintiff cannot, however, receive greater than 100% of her total recovery.
Illustrate the concept of joint and several liability.
Under the common law, Imogene would not be responsible for the dog bite because Imogene did not have any reason to believe his dog would bite anyone.
Imogene has a dog that bites Sally. The dog, Lars, has never bitten anyone before and has not shown vicious tendencies previously. Sally sues Imogene for her injuries caused by the dog bite. Who is responsible under common law?
The court held that the alligator farm did not have to be shut down as long as the odors could be contained in some other manner, such as through an airlock system.
In Barras v. Herbert, why did the court rule that the alligator farm did not have to be shut down?
True
In Li v. Yellow Cab, the court was persuaded by how many states had already switched to comparative negligence. True False
False
In local government, if the official was performing a proprietary function and commits a tort, then the government will be provided immunity. True False
True
In order for a plaintiff to successfully sue under warranty of fitness for a limited purpose, the seller must have known that the buyer was going to use the product for that purpose and the buyer must have relied on the seller's knowledge. True False
False
In the Palsgraf v. The Long Island Railroad Companycase, the railroad worker was liable for the injury to Ms. Palsgraf because she was a foreseeable plaintiff. True False
at the employer's request
Information may not be passed between medical providers: at the employer's request to report gunshot wounds for the government to check on the standard of care being provided for billing purposes
Underinsured motorist insurance
Insurance which comes into play when an insured is hit by someone without sufficient insurance to pay for all the losses of the injury is called: bodily injury insurance. property loss insurance. uninsured motorist insurance. underinsured motorist insurance.
Yes. There is a much greater duty to disclose if there is a fiduciary relationship between the parties. A fiduciary is required to act with the best interests of the other person in mind.
Is there a difference in the duty to disclose if the parties have a fiduciary relationship?
Janice will not win because the vendor's statement is not a misrepresentation of a material fact.
Janice goes to the fair and listens to the vendors at the fair. She in particular likes a blender and is thinking about buying it. The salesperson tells her "this is the best blender in the whole wide world." Based upon this statement, Janice goes ahead and buys the blender, but when she gets it home, she finds out that the blender's strength is so weak, it will not blend ice. Janice brings a fraud lawsuit against the vendor. What will most likely happen? The vendor will win the fraud lawsuit because no one should believe fair vendors. The vendor will win the fraud lawsuit because he did not intentionally mislead Janice. Janice will win because she would not have bought the blender unless the salesperson had told her "this is the best blender in the whole wide world." Janice will not win because the vendor's statement is not a misrepresentation of a material fact.
Yes to both questions.
Juliet buys a cute puppy at the pet store, but when the "puppy" grows up, she finds out she was hoodwinked into buying a wolf. She took the puppy to dog obedience classes, so the wolf is very well mannered and acts like a dog. Even though Juliet thought she bought a dog and she took it to dog obedience classes, is the wolf is still a wild animal? Will Juliet be held strictly liable if the wolf injures someone?
True
Katko v. Briney held that property owners should not use deadly force to protect property. True False
Yes, even though Laura did not intend for the bleach to fall and go into the cookie dough, she knew with substantial certainty that serving food with bleach in it would cause someone to become sick. Therefore, Laura did have the intent necessary to cause Tom to become sick.
Laura starts to make cookies. After she has prepared the cookie dough, she turns around to grab a kitchen timer. She hears something fall and turns around to watch a bottle of bleach fall into the cookie dough and crack open. She decides to bake the cookies and serve them to Tom anyway. Tom becomes very sick and has terrible burning sensations down his throat. Did Laura have the intent necessary to find her liable for battery?
Special Damages
Loss of wages falls under which of the following: special damages punitive damages general damages nominal damages
False
Most states follow the principles of contributory negligence. True False
Muriel was not using the car properly.
Muriel is trying to tear down a termite-infested fence. It is hard work, and she is sweating profusely. While stopping to take a break, Muriel spots her sports utility vehicle and thinks to herself "that would make a great battering ram." Muriel gets in her car and guns it towards the fence, but the car's windshield is broken by a segment of the fence and Muriel is skewered by the fence. If Muriel attempts to bring a products liability case under strict liability theory, what will the problem be?
C. No, because in general people do not have a legal duty to help one another.
Natasha is driving by the scene of an accident when she hears Monica screaming for help and sees Monica trying to crawl away from her car, which is on fire. Does Natasha have a legal duty to call 911? A. Natasha has a moral duty to call 911. B. Yes, because calling 911 is not an onerous task.1 C. No, because in general, people do not have legal duty to help one another. D. Yes, because by not calling, Natasha puts Monica into a worse situation.
True
Negligence per se is the violation of a statute True False
Yes, by being in a boxing match, Terrence has consented.
Norbert and Terence are in a boxing match. Norbert strikes Terence, knocking Terence's teeth out. Has Terrence consented to that battery?
True
Opinions are not normally considered defamatory statements. True False
False
People are typically found negligent for their omissions. True False
False
People never owe a special duty of care to one another. True False
True
People should look where they are walking. True False
A plaintiff can be put back into the position he was in before the misrepresentation. Then the plaintiff would have $5,000.00 returned to him. Alternatively, the plaintiff can be put into the position he would have been in had the misrepresentation been true. Then the plaintiff would have $7,500.00.
Plaintiff buys a diamond that is actually only worth $500.00, although he buys the diamond for $5,000.00. If the diamond was as represented by the defendant, the diamond would have been worth $7,500.00. How can the plaintiff measure his damages?
True
Proximate cause can actually limit a plaintiff's recovery. True False
No, Randy has not committed an assault or battery.
Randy calls up William and states: "I know you took the last of my money. I'm coming over to get it back by any means necessary." Has Randi committed a tort? Yes, Randy committed an assault. Yes, Randy scared William so much William did not leave his house for several days, so Randy committed false imprisonment. No, Randy has not committed an assault or battery. Yes, Randy has committed an assault and attempted battery.
True
Restatement torts were written by the courts. True False
False
Sixty days is the national standard for when medical records should be produced to a patient. True False
True
Statutes of limitations start running when the plaintiff is injured. True False
Adele will win a battery claim because she was harmfully contacted.
Sydney and Adele get into a bar fight. As Adele is turning to leave, Sydney hits her over the head with a glass bottle. If Adele sues Sydney for battery, what will be the outcome? Adele will not win a battery claim because she did not fear or apprehend the bottle Adele will win a battery claim because she was harmfully contacted. Adele will win because even though her back was turned, she was leaving because she was fearful of Sydney. Adele will not win a battery claim because Sydney did not touch her directly.
False
The Restatement's test for reasonableness of conduct is completely different than the Learned Hand test for reasonableness. True False
False
The attorney owes a duty to the insurance company who is paying him, rather than the insured he is working for. True False
False
The burden of proof in a civil case is beyond a reasonable doubt. True False
probable cause
The defendant can prove he did not commit malicious prosecution if there was no ___________ for the charges brought against him. direct evidence eye witness testimony circumstantial evidence probable cause
all of the above
The defendant must show which of the following in order to prove the plaintiff consented? the consent was given voluntarily the plaintiff understood the consequences the plaintiff had capacity all of the above
False
The doctor-patient privilege is an absolute privilege. True False
Negligence Per se
The doctrine that violating a statute creates a presumption of breach of duty is: negligence per se res ipsa loquitur sin quo non respondeat superior
The defendant was prejudiced against the plaintiff and made a baseless charge or allegation.
The element of malice in malicious prosecution means: The defendant was prejudiced against the plaintiff and made a baseless charge or allegation The defendant wished the plaintiff ill The defendant preplanned the allegation The defendant hated the plaintiff
True
The expert should be a member of professional organizations he is expected to be a member in.
True
The goal of awarding damages to the plaintiff is to make the plaintiff as whole as possible. True False
True
The holding of Summers v. Tice was that the burden of proof shifted to the defendants to prove that one of them did not injure the plaintiff. True False
all of the above
The public policy behind the institution of products liability law is: to discourage making dangerous products near or around a urban setting to provide incentive to manufacturers to create safer products to put the costs of injuries due to a defective product on the people more able to bear the costs All of the above
Direct Questioning
The type of questioning which occurs when the attorney who calls the witness questions the witness. redirect questioning direct questioning cross examining impeachment
The defendant does not have to say anything to put the plaintiff in fear or apprehension for purposes of assault.
There is a knife on the kitchen counter which the defendant makes a move for; is this act alone would be enough to place the plaintiff in apprehension?
False (test answer, but I believe it is wrong).
To be found liable for committing an intentional tort, the defendant must have intended to injure the plaintiff. True False
False (You can throw something and not physically touch the individual)
To be found liable for the tort of battery, the defendant must touch the plaintiff. True False
True
To be found liable under the doctrine of contributory negligence, the plaintiff has to have been the proximate cause of his injuries. True False
True
To prove a malicious prosecution case, the plaintiff has to win the underlying case. True False
False
To use a preemptory challenge to dismiss a juror, the attorney must give a reason why she is dismissing that juror. True False
True
Typically, a plaintiff cannot recover for prior injuries.
True
Typically, a plaintiff cannot recover for prior injuries. True False
True
Unavoidable Accidents are not negligence. True False
The plaintiff does not have a physical injury in addition to the emotional distress.
Under which of the following, is negligent infliction of emotional distress most tenuous? the plaintiff does have emotional distress which manifests itself as a physical injury the plaintiff suffers emotional distress form watching another person be injured, but does not have a physical injury herself the plaintiff witnessing the injury to another was immediately threatened by the negligent action of the defendant the plaintiff does not have a physical injury in addition to the emotional distress
When discussing intent, we are not concerned about the motive of the defendant in committing her actions. Therefore, this thought will not affect the case.
Using the example above, what if Laura thought to herself: "Oh, great, I'm glad the bleach fell in, because that will make a great joke on Tom."
All of the above
Which of the following are considered a principal-agent relationship? a real estate agent and her client an attorney and his client an employer and an employee all of the above
Janice will win because she would not have bought the blender if the salesperson had told her the blender had caused accidents.
Using the same fact scenario as above, this time the vendor says to Janice the blender has never caused any accidents. However, the vendor knows this is not true, and that several people's pinky fingers have been cut off by the blender when cleaning the blender. If Janice brings a fraud lawsuit against the vendor, what will most likely happen? The vendor will win the fraud lawsuit because no one should believe fair vendors. The vendor will win the fraud lawsuit because he did not intentionally mislead Janice. Janice will win because she would not have bought the blender if the salesperson had told her the blender had caused accidents. Janice will not win because the vendor's statement is not a misrepresentation of a material fact.
a and b but not c
Ways in which medical records can be falsified are: making up medical records omitting information writing sloppily a and b, but not c
Walter can seek reimbursement or contribution from the other defendants that the plaintiff did not litigate against. If all four defendants were equally at fault, Walter would seek $25,000.00 from Ella, $25,000.00 from Orson, and $25,000.00 from Horace.
Webster is the plaintiff who was injured by four defendants, Ella, Orson, Horace, and Walter. Webster only sues Walter, and receives all of his damages in the amount of $100,000.00 from Walter. What can Walter do?
The interference is not necessarily with Gladys' use and enjoyment of her land. One of the biggest problems is the interference is not unreasonable and substantial enough. There may also be an issue of proximate cause—certainly Wentworth's mowing was not the only cause of Gladys' substantial flu.
Wentworth likes to mow his lawn at 8:00 a.m. on Saturday mornings. Gladys likes to sleep in on Saturday mornings to at least 10:00 a.m., but cannot because of the mowing sounds. She is exhausted and due to being exhausted gets a severe flu. If Gladys attempts to bring a private nuisance action against Wentworth, what will some of the problems be?
Students' answers will vary. Two examples are: going through someone's mail or wallet.
What are examples of unreasonable intrusion?
Compensatory damages are to put the plaintiff back into the position, as much as possible, she was in prior to the accident. Punitive damages are used when a defendant has acted with reckless disregard for the safety of the plaintiff. Nominal damages are awarded to a plaintiff when the plaintiff proves negligence but is not able to prove she suffered harm as a result.
What are purposes of punitive, compensatory, and nominal damages?
The three types of damages are compensatory, punitive, and nominal. There is also a difference between general and special damages. General damages are intangibles. Pain and suffering is an example of general damages. Special damages are easier to prove than general damages because they can be quantified better. Compensatory damages are an example of special damages. When a plaintiff is unable to prove damages, but does prove negligence, then nominal damages, of usually $1.00, are awarded.
What are the different types of damages a plaintiff could recover? How do these types of damages differ?
One of the goals of discovery is to gather information on the other party's facts and evidence. Such facts and evidence should be non-privileged.
What are the goals of the discovery process?
administrative law, statutes, and the Constitution.
What are the sources of tort law?
The spouse is claiming lost services. When the plaintiff was injured, so was the marriage. Damages under loss of consortium include loss of company, loss of sex, loss of household help, etc.
What can a spouse recover for under loss of consortium.
The paralegal should be gathering the person's full name; work, home, and cell phone numbers; home and work addresses; and email addresses.
What contact information should you, as a paralegal, be gathering throughout the case from potential witnesses?
To use res ipsa loquitur, the plaintiff is going to have to show that it is not just as likely someone else, other than the defendant in question, caused the harm to the plaintiff. A plaintiff can use res ipsa loquitur to infer negligence when the plaintiff does not have direct evidence of the negligence.
What does a plaintiff have to prove before he can use res ipsa loquitur? When will a plaintiff want to use the doctrine of res ipsa loquitur?
In general, no duty is owed to a trespasser. A possessor of real property must warn known trespassers of an artificial condition on the property. A known trespasser is owed the same duty of care that a licensee is provided. Another exception to the general rule that there is no duty owed to a trespasser is the attractive nuisance doctrine.
What duty of care is owed to trespassers who come on a possessor's real property?
A conflicting interest is an interest that might be considered a higher priority than the client's interest or might compete with the client's interest.
What is a conflicting interest?
A material fact is one that is an important or essential fact to the contract.
What is a material fact for purposes of fraud?
Some relationships people have with each other impose a duty on one of the party's to act in a certain way to the other party. Employers have a special relationship with their employees that imposes a greater duty than the general duty every person owes to others.
What is a special relationship for purposes of duty?
Foreseeability means the defendant should only be held responsible for the plaintiff's injuries when the defendant's acts or omissions would be likely to cause the type of injuries the plaintiff actually had.
What is foreseeablity?
Res ipsa loquitur is a way for plaintiffs to potentially recover when a plaintiff cannot prove how a defendant was negligent. The object that caused the injury to the plaintiff must have been in the defendant's complete control.
What is res ispa loquitor
sign the attorney-client fee agreement with the clent
Which of the following can a paralegal not do: sign the attorney-client fee agreement with the client discuss the attorney-client fee agreement with the client meet with the client in the initial client meeting call the client on the phone
Slander is an oral defamatory statement. Libel is a written defamatory statement. Other than being oral or written, libel and slander are similar. Libel per se is a written statement which is serious enough that it will be presumed there was injury to the plaintiff's reputation. To prove slander, a plaintiff will have to prove some type of special harm or that the statement is slander per se. Statements that the plaintiff committed criminal conduct fall under slander per se. Stating someone has a sexually transmitted disease will also bring about a slander per se action.
What is the central difference between slander and libel?
A pure comparative negligence state allows the plaintiff to receive damages no matter how much he is at fault, so long as the defendant is also at fault. So long as the plaintiff's negligence is less than 100%, he can recover. A modified comparative negligence state is further divided into two types. In the first type, a plaintiff must be less than 50% at fault to recover. If the plaintiff's negligence is more than 50%, then she cannot recover. In the second type, a plaintiff's negligence can be equal to the defendant's negligence. Therefore, the plaintiff's negligence could be as great as 50%, and he could still recover 50% from the defendant.
What is the difference between a pure and modified comparative negligence state?
The duty to defend means the insurance company must hire an attorney to represent the injured if the insured is sued for something that is covered by the insurance policy.
What is the duty to defend?
A duty is a person's requirement to act with a certain standard of care. In general, people owe each other a duty to act with reasonable care to avoid injuring each other, but have no duty to aid one another. If the parties have a special relationship, a duty to act may be imposed (such as with parents and children). If there is a special relationship, the special relationship will also determine how much of a duty is owed.
What is the general duty everyone owes to others?
In New York Times v. Sullivan, the Supreme Court held that when a statement is made by the press about a public figure or about a public matter, then the public figure will have to prove actual malice in order to recover.
What is the holding of New York Times v. Sullivan?
The main purpose of cross-examination is to impeach the other party's witness.
What is the main purpose of cross-examination?
Direct Examination
What is the procedure called when an attorney who calls a witness, questions the witness? Redirect examination Cross-examination Impeaching the witness Direct examination
The purpose of a motion in limine is to try an issue of evidence prior to a jury being sworn in. Thus, if an evidentiary issue is tried prior to the jury being sworn in, the jury will usually never hear any evidence on that issue.
What is the purpose of motions in limine?
Questioning the jury, also known as voir dire; opening statements, wherein the attorneys state the evidence which will be presented at trial; the plaintiff puts on his case by directly examining his witness and the defendant cross-examines the plaintiff's witness. The defendant puts on his case by directly examining his witness and the plaintiff cross-examines the defendant's witness. Closing arguments; the judge gives the jury its instructions; the jury deliberates; and the jury makes a verdict.
What is the sequence of the trial?
The standard of care required of children is that of a child with similar age, intelligence, and experience.
What is the standard of care required with children?
Underinsured motorist coverage will step in to compensate the plaintiff (if he had underinsured coverage) if the defendant's insurance is not enough to pay for all the losses. Note that this is different from uninsured motorist coverage, which will step in to compensate the insured when the person who caused the accident did not have any insurance.
What is underinsured motorist coverage?
A defendant can raise assumption of the risk because the plaintiff had the opportunity to avoid the danger.
What other defenses can a defendant raise to strict liability?
All of the Above
What type of injury can a plaintiff consent to? an emotional injury a physical injury an injury to real property All of the above
The attorney is interviewed by a newspaper about the case.
When can an attorney not reveal information relating to the representation of the client? the attorney is ordered by the court to reveal information. the attorney is interviewed by a newspaper about the case. the client states he is going to rob a bank. the client states he is going to murder someone.
A plaintiff who is a public figure or official will have to show the defendant acted with actual malice in order to win a defamation lawsuit. Actual malice is acting with knowledge the statement was false or with a reckless disregard for whether the statement was false or not.
When does a plaintiff need to show the defendant acted with actual malice?
A defendant can only raise this defense when she was exposed to an intoxicating substance which has an effect on one's mental reasoning, and she did not knowingly or willingly expose herself to the intoxication.
When may a defendant raise the defense of involuntary intoxication?
Depositions are oral questions which can be asked of parties and witnesses. Interrogatories are written questions, answered under oath, and can only be propounded to parties. Therefore, if witnesses need to be questioned a deposition must be used. A reason to take a party's deposition over an interrogatory is when a party may not be around for trial, either because they are very ill and may die or because they are out of state. In these instances, the party's deposition can be video-taped and used at trial.
When should depositions be used, rather than interrogatories?
If a defendant had a much greater bargaining position over the plaintiff or was the only provider of a particular service, then a court may decide not to uphold an express assumption of the risk.
When will a court not uphold an express assumption of the risk?
An employer will not be vicariously liable for the acts of his employees when the employee was not acting with the course and scope of his employment. However, if the employee deviates from his job and the deviation was reasonably foreseeable, the employer can still be liable.
When will an employer not be vicariously liable for the acts of his employees?
Allowing water to flood onto your neighbor's property
Which of the following is not a public nuisance? parking a delivery truck in such as way that it blocks traffic amassing large amounts of bottle rockets in an urban setting allowing water to flood onto your neighbor's property running a "massage" parlor
a temporary restraining order
Which of the following is not a remedy available to the plaintiff in a nuisance action? a temporary restraining order a temporary injunction a permanent injunction money
Employer and independent contractor
Which of the following is not a special relationship? parent and child spouses going through a separation employer and employee employer and independent contractor
The plaintiff going on his own
Which of the following is not a way in which defense medical examinations can be obtained? a request for one the plaintiff going on his own by court order a stipulation between the parties
Spraying over-the-counter weed killer on one's individual tomato plants
Which of the following is not an abnormally dangerous activity? making illegal pipe bombs for sale spraying over-the-counter weed killer on one's individual tomato plants storing a large amount of propane in one's basement in the city operating a nuclear power plant
Entering the plaintiff's land to look for a lost dog.
Which of the following is not an example of private nuisance? Noxious odors coming from a nearby cattle ranch sewage spilling across property lines entering the plaintiff's land to look for a lost dog vibrations from an explosion
recapture of chattels after a significant amount of time.
Which of the following is not considered a privilege? self-defense necessity defense of others recapture of chattels after a significant amount of time
Specialist
Which of the following people are held to the highest standard of care? laypeople Doctors specialists professionals
D. All of the above
Which of the following relationships give rise to a special relationship? A. parent and child B. a prison and prisoner C. employers and employees D. All of the above
Florida
Which of the following states has longer than a three year statute of limitations? Arizona Florida Tennessee Alaska
The defendant's intention in performing the abnormally dangerous activity.
Which of the following will a court not take into consideration in determining whether an activity is abnormally dangerous? whether the activity is common whether there is a risk of serious harm whether the activity should take place in another locale the defendant's intention in performing the abnormally dangerous activity
Shaman dance for wellness.
Which of the following will not be covered under damages? a prescribed lumbar support cushion shaman dance for wellness chiropractic care acupuncture
All of The Above
Which of the following would break the unbroken, natural chain of event between the defendant's negligent conduct and the plaintiff's injuries? an act of God a superseding cause an intervening cause all of the above
Asking a cross-dressing juror his sexual preference
Which of the following would probably not be an acceptable voir dire question? asking a sloppily dressed juror if he is employed asking a man without his wedding ring on his marital status asking a cross-dressing juror his sexual preference asking a female juror her age
The insured and the insurance company are the parties to the insurance policy. The insurance company agrees to indemnify the insured named in the policy for items mentioned in the policy. The insured's duty is to pay the insurance dues.
Who are the parties to an insurance policy?
Spouses can recover for the death of their spouse under wrongful death. A survival action is brought by the administrator of the decedent's estate.
Who can bring a wrongful death and survival action?
Drivers covered by car insurance typically include the people named on the insurance policy, a spouse, a member of the insured family who is licensed, and anyone else who is driving the car with the permission of the insured.
Who does an insurance policy typically cover?
The Defendant
Who has the burden of proving an affirmative defense?
The possessor of the premises.
Who should a premises liability lawsuit be made against? the possessor of the premises the renter of the premises, who is on vacation against anyone who owns or somewhat possesses the property the owner of the premises
Not only is the victim's interest violated, the public's interest is violated as well.
Whose interest is violated when a crime is committed?
Discounting to present value prevents the plaintiff from getting more than she is entitled to. Otherwise, the plaintiff would be compensated today for future damages. The plaintiff should be able to invest the money and have it grow.
Why are plaintiffs discounted to present value?
The central deciding factor in whether a person is determined to be an independent contractor is whether he controls the day-to-day issues that arise in the business or if the employer does. Employees typically do not control the day-to-day issues that arise in the business.
Why are some people dubbed independent contractors, rather than employees?
Students' answers will differ, but should at least relate the following: public figures have purposely put themselves into the public's eye. As such, the public figure does not have the same rights to privacy.
Why do public figures not receive as much protection from defamation as private figures?
Physical disabilities are much easier to quantify than whether a defendant has an emotional or psychological disability.
Why does a court take physical disabilities more seriously than mental disabilities?
A statement of opinion cannot be defamatory. The judge will look at the words around the alleged defamation to determine whether the statement was one of fact or opinion.
Why is the difference between fact and opinion of importance in defamation? How will a court decide if a statement is a statement of fact or opinion?
Yes. Contact must be offensive to a reasonable person in order for the contact to be considered offensive. However, if the defendant knows that certain contacts would be offensive to a particular plaintiff, although the contacts would not be offensive to a reasonable person, then the defendant can still be liable to for battery.
Zachary is a very sensitive about germs and cannot stand to shake anyone's hands because he believes he will contract a serious disease and die. Victor knows this about Zachary but forces Zachary to shake his hand. Has Victor committed a battery?
True
consent negates battery true false
