Business Law Exam II: Chapter 9 Questions and Essays

Compensatory Damages

A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.

ASSUMPTION OF THE RISK

A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured.

negligence per se

An act (or failure to act) in violation of a statutory requirement.

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

C. arises by accident

Discuss the concepts of contributory negligence and comparative negligence.

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

Which of the following actions resulting in injury would be negligence per se? a. Janet driving 40 mph over limit b. Ted keeping explosives in his private, locked garage without complying with state law regulating such material c. A retailer selling glue containing benzene to a 14 yo boy in violation of state law d. all of the above

D all of the above

List and discuss the elements necessary to establish negligence.

Duty of Due Care - there must be a duty owed to the plaintiff. Breach - duty must be breached. Factual Cause - the injury must have been caused by the defendant's actions. Proximate Cause - it must have been foreseeable that the action would cause this kind of harm. Damages - the plaintiff must have been hurt.

A defendant who engages in pile driving is liable for harm that results from the activity only if the plaintiff proves the harm was foreseeable.

False

While hunting Roger enters onto Virgil's property without permission and is injured by a dead, falling tree limb. Under the common law, Virgil is liable for Roger's injuries.

False

In a strict liability case, the courts still consider if the defendant acted in a reasonable and prudent manner

False; they are always liable

Kelley climbed a fence and went ice skating on a neighbor's recently dug pond, but she fell through a thin area into icy waters. Kelley did not have permission to be on the property, and the neighbor did not even know that she was there. Is the neighbor liable for Kelley's injuries?

It may depend on Kelley's age.

Under a state law, a dog owner is absolutely liable to any person who is injured by a dog. This is an example of:

Strict liability

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

The contractor is liable under the concept of strict liability. Generally speaking, strict liability, also known as liability without fault, applies if a person engages in dangerous activity that results in damage to property or personal injury. The homeowner does not have to prove duty, breach, or foreseeable harm.

In negligence cases the courts often refer to the term "reasonable person." What is meant by this term?

The reasonable person is used to establish the standard of conduct of an average person under the same circumstances. It is, in essence, a benchmark for proper conduct of a person under a given factual pattern.

PRODUCT LIABILITY -

There are two main issues related to product liability cases: Negligence - unreasonable conduct by the defendant. Strict Liability - policy which holds the defendant liable regardless of his behavior.

Mavrex, Inc. received an application from Larry and, since his written qualifications seemed to meet a pressing current need, they hired him without checking his references or prior records. Actually, Larry had been in prison for murder several years earlier. Tom, a long-time Mavrex employee, angered Larry when Tom tried to tell Larry how to do his job. Larry attacked and injured Tom. If Tom sues Mavrex, what would his cause of action be, and what elements would Tom need to prove to win his case?

Tom's cause of action would be negligent hiring. Companies can be liable for hiring or retaining viol- ent employees. The company should check records, including criminal records, and contact personal references before hiring employees. To win a case in negligence, Tom would need to prove five ele- ments: a duty of care on the part of Mavrex to Tom, a breach of this duty, factual cause, foreseeable harm, and injury. The test for a duty of care is generally "foreseeability." If the defendant could have foreseen injury to a particular person, there is a duty to him. To prove the second element of negli- gence, breach of duty, courts apply a reasonable person standard. The third element, factual cause, means that Mavrex's conduct actually caused Tom's injury. The fourth element, foreseeable harm, means it was reasonably foreseeable that conduct like Mavrex's might cause the type of harm that did result. The fifth element, injury, means that Tom actually has been hur

A landowner's highest duty is owed to invitees

True

A sports fan, injured by a hockey puck that flew into the stands during an NHL game, would be subject to the defense of assumption of risk if she files suit to recover for her injuries

True

A customer in a restaurant would be considered ________ to whom the restaurant owner owes a duty ________. A. a licensee; to warn of known dangers. B. an invitee; of reasonable care. C. a social guest; only to avoid intentionally injuring him. D. none of the above

an invitee; of reasonable care.

One morning, Miles placed a thumbtack on the chair of the office manager where he worked. He had no quarrel with the office manager, but thought this would be funny. Two days after sitting on the tack, the office manager was hospitalized with an infection caused by the tack. Which of the following is correct? a. Miles actions were negligent b no tort had been committed c Miles had committed an intentional tort d. Miles is strictly liable

c Miles had committed an intentional tort

In a negligence case, the plaintiff must establish: a. duty, strict liability, causation, harm, and injury b. mens rea, breach, foreseeable harm, and injury c. duty, actus rea, foreseeable harm, and causation d. duty of care, breach, foreseeable harm, and injury

d. duty of care, breach, foreseeable harm, and injury

Bob, a weak swimmer, ignored warning signs in a recreational swimming area and went into deep water. He soon tired and realized that he could not make it back to shore. Seeing Kelly, he cried out for help. Kelly, however, ignored the pleas. Bob was finally saved by Dorothy, but suffered partial brain damage by being submerged without oxygen for a number of minutes. Bob now sues Kelly for negligence for failing to save him. Bob will:

lose because Kelly had no legal duty to rescue him

duty to invitees

to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover. (store)

Punitive Damages are awarded

to punish the defendant

duty to licenses

to warn of known but hidden dangerous conditions licensees are unlikely to discover for themselves. (social guest)

Dram shop laws impose liability on those who commercially serve alcohol for injuries cause by their intoxicated patrons

true