Tort Exam 2 (ch. 4-9)

What information is needed to calculate the present value of a future reward?

must calculate a dollar at the current rate of interest and multiply that by the average monthly earnings for the designated period of time.

a landlord

must perform repairs reasonably even if he has no contractual obligation to make the repairs

what is a plaintiff alleging malpractice required to prove?

must prove both the standard of care expected within the profession and the defendant's deviation from the standard

Is there a common law duty to rescue someone in distress? a. under what conditions does such a duty exist? Give an example

no legal obligation to aid plaintiff in distress unless a special relationship exists between the plaintiff and the defendant. a. example of special relationship is parent-child.

t/f. to prove res ipsa loquitur, the plaintiff must show that the negligence was due to the defendant and not someone else, and that the injury the plaintiff suffered was of the type that does not ordinarily occur except as a result of negligence

true

t/f. under the common law, protection was given to the actual possessor of the land and not an abstract legal owner, and landlords were absolved of liability once they surrendered possession of their property to their tenant

true

t/f. under the market-share-liability theory, a plaintiff can recover even if she cannot prove which defendant from among multiple defendants actually caused her injury

true

t/f. under the substantial-factor test, if concurrent causes produced a single, indivisible harm, both factors can be deemed the actual cause of the plaintiff's injuries

true

t/f. when a plaintiff suffers no physical injury, courts are reluctant to award damages for emotional suffering because of fear of fraudulent claims

true

to whom do medical records belong? when do defendants have a right to these records?

the physical record is the property of the healthcare provider, but the content is the property of the patient. defendant has right to subpoena records when plaintiff has made her medical problems the subject of litigation

must a plaintiff's negligence add to or be concurrent with a defendant professional's negligence for the defendant to be relieved of liability?

to allege contributory negligence, a plaintiff's negligence must be concurrent with the defendant's

what are the justifications for charitable immunity, and what is its status today?

to protect charitable institutions from tort claims and thereby promote their existence. majority of states have abolished it; other states have abolished it only in reference to charitable hospitals

to what standard of care is a specialist held?

to the standard of a "reasonably careful and prudent specialist"

t/f. if the acts of a third party are not surprising, they will be considered intervening causes, and acts of the defendant that precipitate the third party's conduct will be considered the proximate cause of the plaintiff's injury.

true

t/f. if the market value of property does not provide adequate compensation because property has personal value to the plaintiff, the courts will look at the original cost of the property and the condition of the property

true

t/f. ignorance of the law is no excuse even if the law contradicts the custom of the community

true

t/f. in assessing the expected recovery in a case, attorneys consult trial reporters and professional journals

true

t/f. in cases in which there is no physical harm, most courts restrict liability to emotional suffering that is serious

true

t/f. in determining future losses jurors must determine how long a plaintiff is expected to live

true

t/f. in most courts evidence of collateral benefits is inadmissible

true

t/f. in most instances in tort law an objective standard is used to assess the reasonableness of a defendants conduct because doing so reduces the uncertainties in the legal system and maximizes safety to members of the community

true

t/f. in some states survival actions are limited to the losses occurring prior to a decedents death and are not allowed if the decedent's death is instantaneous

true

t/f. in states that prohibit leaving keys in a parked car, a defendant is not necessarily negligent per se if he leaves his keys in his car and the thief who steals his car is involved in an accident causing injury to the plaintiff

true

t/f. loss of consortium was available only to the husband under the common law

true

t/f. losses for shortened life expectancy were denied under the common law and by most courts today

true

t/f. many states require that spouses sue only once for injuries resulting from a single accident or event

true

t/f. possessors are generally liable for artificial conditions that pose an unreasonable risk of harm to people outside the premise

true

t/f. proximate cause reflects a judicial concern that defendants should not be liable for highly improbable consequences stemming from their negligence `

true

t/f. punitive damages are criticized because they can bankrupt defendants

true

t/f. punitive damages are in essence criminal fines that arguably should be paid to the state

true

t/f. some argue that compensation of those suffering pain serves to reinforce and therefore increase their pain

true

t/f. some courts allow recovery when the child is a minor and still dependent on the parent

true

t/f. some courts have applied the voluntary undertaking doctrine even when the plaintiff did not rely on the defendants services

true

t/f. specialists are held to a higher standard of care than other members of the profession

true

t/f. structured settlements are favored by the defense bar

true

t/f. structured settlements minimize the income tax a plaintiff has to pay

true

t/f. studies show that compensation of pain and suffering is not necessarily equitable

true

t/f. the applicability of the attractive nuisance doctrine depends on the age, experience, and intelligence of a child

true

t/f. the but-for test does not encompass situations involving concurrent causes

true

t/f. the courts are less willing to apply the doctrine of res ipsa loquitur in cases in which the defendants are strangers and act independently

true

t/f. the courts can find an entire industry negligent even if no one in the industry has adopted adequate safety measures

true

t/f. the problem with wrongful death actions involving the death of a child is that the cost of raising a child usually far surpasses any earnings the child might be expected to bring home

true

t/f. the purpose of automobile guest statutes was to discourage guests from suing their host drivers and prevent collusion between drivers and their guests

true

what is the rationale underlying sovereign immunity?

based on the common law precept that "the king can do no wrong"

To what standard of care are children held?

a reasonable person of like age, intelligence, and experience under like circumstances. somewhat a subjective standard because the intelligence and experience of the child are taken into consideration. Children are held to an adult standard when they are engaging in dangerous activities that are normally reserved for adults

What is required for a release to be enforceable?

a release must be expressed in clear unequivocal language

What are the duties of a tenant?

a tenant is held to the same duty of inspection in reference to invitees as is a landowner. liability does not extend to common areas such as stairways or elevators

When is contributory negligence not a defense?

not a defense in an intentional tort. ex. defendant cannot throw a punch and argue plaintiff was negligent in not ducking. Also not a defense if the defendant's conduct was reckless unless the plaintiff's conduct was also reckless. Next, defendant who is negligent per se may not be able to raise contributory negligence defense. ex. a statute prohibiting sale of liquor to minors. Finally, some kinds of contributory negligence are not a defense in strict liability actions.

value of use of property

plaintiff is deprived of use of property

what kinds of functions of local government are usually protected by immunity?

police and fire departments, school systems, and public hospitals have enjoyed at least partial immunity

t/f. Under the lost chance of recovery theory, a plaintiff can recover even if he cannot prove that the defendant's negligence resulted in a loss of life

true

t/f. What constitutes reasonable care for a possessor depends on the use of the premises

true

t/f. courts are sometimes willing to abandon the physical-harm requirement when the facts are such that one could readily believe that the plaintiff suffered mental distress

true

list at least five ways a professional can commit malpractice

failure to provide informed consent, failure to adhere to a specialist's standard of care when appropriate, failure to make referrals when appropriate, failure to ask essential information from a client, failure to follow up on client's progress, condition, or status

What is the doctrine of respondeat superior?

"let the superior respond" meaning defendant may be liable for tortious act of another even though he is not at fault

What is negligence per se and how does it assist a plaintiff in proving negligence?

"negligence in itself." it is a statute established for reasonable conduct. To prove negligence per se the plaintiff must prove he is a member of the class of persons whom the statute was intended to protect

Sindell v. Abbott Labs

(Court Case) Market Share Liability Established

What is the Learned Hand formula, and how does it help in assessing reasonableness?

(P) is probability that harm would occur as a result of defendants conduct, (L) is the gravity of the potential harm, (B) is the burden of precautions that would have to be borne by the defendant to avoid the possible risk. Duty is breached if P x L > B

Give examples of three exceptions to the Cardozo rule of foreseeability

1. "eggshell skull" rule: "take the plaintiff as he finds him" 2. a defendant is liable if the harm suffered by the plaintiff is of the general type that made the defendant's conduct negligent even if the harm occurs in an unusual manner 3. Plaintiff member of a foreseeable class

What criticisms have been raised against the awarding of damages for pain and suffering?

-day-in-the-life videos have been criticized by defense attorneys as unfairly appealing to the jurors' sympathies and prejudicing them against the defendant. -quantification of damages is difficult -compensating victims for pain has been criticized bc perception pain is subjective

What must a plaintiff prove before being able to rely on the doctrine of res ipsa loquitur?

-the instrument that caused the plaintiff's injury was under the exclusive control of the defendant - the injury suffered by the plaintiff was of a type that does not ordinarily occur except as a result of someone's negligence - the plaintiff did not voluntarily contribute to his or her own injuries -some courts also require that the plaintiff show that the defendant is better able to explain the events that transpired than the plaintiff

What is a 1983 action?

anyone who "under color of any statute, ordinance, regulation... of any state" violates the federal civil rights of any person "shall be liable to the party injured in an action at law"

What is the rescue doctrine?

anyone who negligently causes harm to a person or property is liable to one who is injured in an effort to rescue the imperiled person or property

------- ------ statutes hold drivers of vehicles liable for injuries resulting to guests in their car only under circumstances of extreme misconduct

automobile guest

t/f. defendants acting under emergency conditions must act reasonably, but they are not held to the standard of care demanded of one in nonemergency conditions

true

t/f. direct causation holds defendants liable for the consequences arising from their actions that are unforeseeable

true

t/f. double recovery is possible even if a case is filed under both a wrongful-death and survival statute

true

duty to protect society from unnecessary danger

Andrews

duty to the world at large

Andrews

In Palsgraf

Andrews felt liability should be cut off if there were too many intervening causes or if the result was too remote from the cause in terms of time or space

Duty to protect those in danger zone

Cardozo

Majority opinion for Palsgraf

Cardozo

Opinion followed by most courts

Cardozo

negligence in the air will not do

Cardozo

t/f. if a plaintiff is injured because of the landlord's failure to complete repairs he started, the plaintiff can sue both the landlord and the tenant

true

t/f. if a plaintiff receives services from friends or family members, she can recover the reasonable value of those services

true

when a defendant violates a statute, he is negligent per se if

there is a casual link between the defendants act and the plaintiffs injury

Explain how the Learned Hand formula could be used to assess whether defendants who fail to provide a childproof lock on the gate that leads to their swimming pool should be liable for the drowning death of their neighbor's two year old child

In this situation, a swimming pool is an attractive nuisance, so (P) of a child wandering into their unlocked gate is high. The expenses of (B) childproofing the gate is lower than (L) which is the death of a child. Therefore, (P) and (L) outweigh (B), so the defendant is liable.

What are the possible consequences to the defendant if the plaintiff proves all of the elements of res ipsa loquitur?

Jury is allowed to infer negligence; in some courts, meeting the requirements of the doctrine creates a presumption of negligence, which the defendant must rebut to avoid a directed verdict; in a few courts, once res ipsa loquitur applies, the defendant must prove by a preponderance of the evidence that she did not act negligently.

What sources can an attorney consult when evaluating the value of a case?

Medical Expenses, Lost Wages, Property Damage, Pain and Suffering (p 181)

how have courts that have adopted comparative negligence treated assumption of risk?

they have removed the assumption of risk as a separate defense and have merged it into the defense of comparative negligence

What is the direct-causation rule? a. How was it developed in Polemis? b. Why is this rule criticized?

The direct-causation rule states that a defendant is liable for all consequences of his negligent acts, no matter how unforeseeable those consequences may be, so long as they flow directly through his actions a. in Polemis, a fire destroyed a ship and could be traced back to the dropping of a plank, so the defendants were held liable. b. because a logical extension of the rule would result in limitless liabilit

t/f. a defendant is liable for the harm suffered by the plaintiff even if the harm occurs in an unusual manner, as long as the harm is of the same general type that made the defendant's conduct negligent

true

What is the essence of the question regarding reasonable care, and why is the determination of reasonableness sometimes problematic?

The question of reasonable care boils down to what a reasonable person would have done under similar circumstances. We can assume that any reasonable person will avoid creating an unreasonable risk of harm for others. This can be problematic due to the question of how to calculate risks and avoid actions that create unreasonable risks.

What duty of care is owed to a trespasser? a. What are the four exceptions to this general rule

There is no duty to make land safe Four exceptions: 1. attractive nuisance- children that are likely to trespass, know conditions pose unreasonable risk of injury to children, child unaware of danger posed by condition, benefit in maintaining condition is slight compared to risk posed, possessor fails to use reasonable care to protect children 2. rescuers- possessor negligently causes harm to person or property, harm must be imminent, real, and require immediate action 3. known trespasser- possessor is aware of trespasser, possessor is aware of dangerous conditions 4. limited trespass- trespasser uses only limited portion of land

t/f. a defendant may be found liable for the actions of an obviously intoxicated individual if she loans her vehicle to this individual

true

Why is an objective standard used to evaluate the reasonableness of a defendant's conduct?

To reduce the uncertainty in our legal system and to maximize safety to members of society.

under the --------- ------ theory the plaintiff must show that the defendants encouraged or assisted each other in performing a tortious act

concerted action

Tacit agreement

concerted action theory

What is the voluntary-undertaking doctrine?

a defendant may be found liable even though it has no duty to protect the plaintiff ex. police said they would warn woman if her husband got out of jail; thus assuming responsibility for the injuries she sustained w/out their warning they said they would give.

To what standard of care are professionals held?

a defendant who possesses a higher degree of knowledge or skill as a result of training or experience will be held to a higher standard of care

Who is considered a licensee, and what duty of care is owed to a licensee?

a licensee has possessors consent to be on the property, but does not have a business purpose for being there. most licensees are social guests. duty of possessor is to warn licensee of any dangerous conditions if the possessor is aware of that condition and should reasonably anticipate that the licensee will discover it

to frequent trespassers who use only a limited area of their land, possessors owe

a limited duty of care

under what conditions can a patient be said to have assumed the risk?

a patient who understands the risk involved in the treatment and knowingly consents to that treatment

What is the avoidable-consequences (or "duty to mitigate") rule?

a plaintiff cannot recover for any damages she could have reasonably avoided. duty will be on defendant to prove she could have avoided the harm

how does assumption of risk compare to contributory negligence?

a plaintiff who has assumed the risk has also been contributorily negligent

t/f. a growing number of courts have allowed recovery for pure emotional distress if the plaintiff was near the scene of the accident, observed it, and was related to the victim

true

t/f. a plaintiff is considered an invitee even if she is not engaged in business at the time she is injured

true

t/f. a plaintiff who fails to wear a seatbelt may be seen as having failed to mitigate her damages

true

What are the facts in Palsgraf? a. What was the issue before the court? b. What did the majority rule and why? c. Why did the dissent disagree? d. Do most courts follow the majority or the dissent?

a. The plaintiff must show a wrong to herself in that the defendant's guard was negligent by accidentally dislodging a package if the package was, unbeknownst to the guard, dangerous. The issue is whether the guard violated the plaintiff's right to bodily security, even though she may have been considered to be outside the radius of danger. b. Majority: Defendant was acting in a reasonable manner, and there was no way for the guard to foreseeably predict the consequences that would entail, meaning there was no wrongfulness on the defendant's part c. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former. We owe a duty to society and not just what is foreseeable d. majority; wrong is defined in terms of the natural and probable, at least when unintentional.

t/f. arguably punitive damages and awards for pain and suffering allow plaintiffs to pay attorney's fees and still be compensated for their losses

true

Describe how each of the following is used to prove actual cause a. but-for test b. substantial-factor test c. alternate-liability theory d. market-share-liability theory e. concerted-action theory

a. if the plaintiff's injuries would not have occurred but for the defendant's negligence, the defendant will be deemed the actual cause of the plaintiff's injuries. b. determines whether the defendant was a substantial factor in producing the plaintiff's injuries. if the concurrent causes produces a single, indivisible harm in which the damage from one event cannot be separated from that caused by the other, the courts have generally found both events to be a substantial factor in producing the plaintiff's injuries. c. each negligent tortfeasor must prove that his actions did not cause the plaintiff's injuries. if one fails, both will be found liable. d. allows recovery to the plaintiff who can show that the defendants were negligent but cannot prove which of the defendants caused the injury e. plaintiff must show that a tacit agreement existed among the defendants to perform a tortious act

are contributory negligence and comparative negligence a defense to a. intentional torts? b. reckless or willful and wanton conduct? c. negligence per se?

a. no for both b. no for contributory unless plaintiff was also reckless; possibly for comparative to reduce plaintiff's recovery c. no for contributory; most comparative-negligence states allow reduction in negligence per se instances

for what reasons have many states abolished state sovereign immunity? a. what immunities do states typically preserve b. what kind of statutory immunity is often created by states, and what are the provisions of these statutes?

a. public liability b. some sort of state tort claims act. limits placed on damages, thereby limiting the plaintiff's recovery.

why is it important for legal assistants a. to promote good client relations b. to create well-organized files c. to handle client monies carefully d. to meet all filing dates

a. shield attorneys from certain tasks b. records should be easily retrievable c. there is no mercy when discrepancies arise d. minimize chance of missing important dates

courts sometimes blur the concept of proximate cause and -----

actual causation

factual cause

actual cause

What is the difference between proximate cause and actual cause?

actual cause means that the defendant's actions were were the direct, factual cause of the plaintiff's injuries. proximate cause means that the defendant's conduct was so closely connected to the plaintiff's injuries that the defendant should be held liable

when determining the standard of care for a child, the ------, ------ and ------- of a child are taken into consideration

age intelligence experience

What is the "lost chance of recovery theory" and how does it help plaintiffs?

allows medical malpractice plaintiffs to recover if they can prove a loss of the chance to recover, even if they cannot prove that the doctor's negligence resulted in a loss of life

Explain the differences between intervening and superseding cause a. give an example of an intervening cause b. give an example of a superseding cause

an intervening cause is anything that occurs after the defendant's negligence and that contributes to the plaintiff's injury. A superseding cause cancels out the defendant's liability a. person who caused an accident in which the plaintiff's ambulance was involved b. "act of God" such as being struck by lightning

punitive damages

are considered a windfall to plaintiffs

greater duty owed to children than adults

attractive nuisance

the ----- ----- doctrine deals with those conditions that attract child trespassers

attractive nuisance

Why are courts reluctant to award damages when a plaintiff has suffered emotional injuries but not physical injuries? a. why are damages from mental suffering considered parasitic? b. in what situations are courts more likely to bypass the physical harm requirement? c. What is the "impact" rule? d. why have some courts abandoned the physical-harm requirement? e. how do courts deal w the plaintiffs who witness injury to others?

because of fear the suffering may be feigned a. because they attach to the physical injury b. negligent mishandling of corpses or negligent transmission of erroneous message regarding the death of a family member c. predicating recovery for mental suffering on the plaintiff experiencing some type of physical "impact" d. when the facts are such that one could readily believe there could have been actual mental distress e. abandon physical harm requirement if the plaintiff was near the scene of the accident, personally observed it, and was closely related to the victim

some courts have abandoned the physical harm requirement

because they believe it mechanically excludes cases that are probably valid; because it encourages plaintiffs to engage in exaggerated pleading and distorted testimony; in the cases of an intentional tort

The Tarasoff holding

blurs the line for professionals between protecting others and preserving the confidentiality of communications between themselves and their clients, holds professionals responsible for warning plaintiffs that a client intends them harm if a reasonable person in that situation would have believed a warning to be necessary, has created a lot of controversy

under the ------- ------ test the defendant will be considered the actual cause of the plaintiff's injuries if those injuries would not have occurred but for the defendant's negligence

but for

broadest test for causation

but-for test

survival actions

can result in a windfall to distant relatives

survival statutes allow

claims pertaining to tangible property to survive the decedent's death

defendant should not benefit from plaintiff's investments

collateral source

under the ------ ------- rule a plaintiff can recover for medical expenses from the defendant even if she has been reimbursed for those expenses by her insurance carrier

collateral source

What is the difference between contributory negligence, comparative negligence, and assumption of risk?

comparative negligence- defense that the plaintiff's recovery should be reduced in direct proportion to the plaintiff's percentage of contribution to her own injuries contributory negligence- defense that the plaintiff contributed to his own injuries and should therefore be barred from recovery assumption of risk- defense that the plaintiff voluntarily consented to take the chance that harm would occur if he engaged in certain conduct

restore plaintiff

compensatory damages

In what circumstances have the courts opted to use the substantial-factor test rather than the but-for test?

concurrent causes

what communications does the attorney-client privilege protect? a. how is this privilege waived? b. who is subject to this privilege? c. what should legal assistants do to preserve this privilege?

confidentiality a. when a legal assistant jeopardizes the privilege b. may be claimed by an individual, her attorney, or representative of client's estate c. make sure computer-generated information is reviewed periodically to ensure confidentiality

In considering the burden of proof precaution factor in the learned hand formula, courts

consider the cost of the defendant in taking precautions

the Grimshaw court

considered the reprehensibility of the defendant's conduct and the deterrent effect of the award in deciding whether the punitive damage award was excessive

------- ------ arrangements are the most commonly used fee arrangements in personal injury cases

contingency fee

create potential conflict of interest between attorneys and clients

contingency fees

what have some courts done to mitigate the harshness of the contributory negligence doctrine?

contributory negligence must be proved and specifically pleaded by the defendant. also, in most jurisdictions the question of contributory negligence is left to the jury. Most specific way it has been mitigated is through the last-clear-chance doctrine. if defendant has chance to prevent negligence but doesn't, the contributory plaintiff is void of liability

How does custom affect the evaluation of reasonableness?

courts will look at the standard practices of a trade or community in assessing the reasonableness of the defendants conduct

loss of consortium is considered a(n) ----- claim because it is based on another person's underlying claim

derivative

What is the purpose in awarding punitive damages? a. what must plaintiff prove to justify punitive damages? b. on what grounds are punitive damage awards criticized? c. why did the Grimshaw court believe that the punitive-damages award was not excessive?

designed to punish the tortfeasor for egregious misconduct and to deter similarly situated wrongdoers a. can be awarded when the defendants conduct is egregious or almost criminal b. undue compensation to the plaintiff because they are not related to the plaintiff's injury c. they provide a motive for private individuals to enforce rules of law and enable them to recoup the expenses of doing so, which can be considerable and not otherwise recoverable

What is the problem with proving loss of future earnings?

difficult to compute. must first determine how long plaintiff's are expected to live. must also take into account plaintiff's personal habits, prior health, and individual characteristics on determining the plaintiff's projected life span. applicable only when plaintiff can show injuries are permanent

courts that follow the -------- causation rules do not take into account the foreseeability of the result and the extent of the harm

direct

virtually limitless liability

direct cause

t/f. common carriers have a legal duty to protect passengers from a criminal attack

true

under the ------ ------ rule a defendant must take a plaintiff as he finds him

eggshell skull

liability for unforeseen consequences suffered by plaintiff

eggshell skull rule

What does recovery for loss of consortium include? a. why is it considered a derivative claim? b how can double recovery for spouses arise, and how is it prevented? c. can parents recover for loss of consortium in reference to a child? d. Can children recover for loss of companionship of a parent?

encompasses recovery for lost services, such as sex, companionship, earnings outside home, etc. a. it is derived from the spouse's underlying claim b. since both spouses can recover; states require that actions be brought together c. yes, can also recover for services and loss of earnings from child d. children cannot unless they are a minor and/or depend on the parent for nurture and development

what can attorneys do to prevent professional negligence suits?

ensure reasonable workload, learn how to manage their business, be willing to dedicate the amount of time necessary to handle a client's problem competently.

What is the doctrine of res ipsa loquitur and how does it help a plaintiff?

means "the thing speaks for itself" allows plaintiff to create an implication that the defendant was negligent without providing direct evidence of that negligence

are professional negligence suits increasing or decreasing? a. what percentage of legal malpractice claims become insurance claims? b. how many claims are filed against most attorneys? c. do most of these claims result in recovery of damages? d. what kind of attorney is most likely to be sued, and what type of error does this attorney typically commit?

increasing a. 10% b. three or more c. no d. litigators. administrative errors

t/f. if the plaintiff is able to prove the elements of res ipsa loquitur, all courts allow juries to infer negligence but do not allow a presumption of negligence to be created that the defendant would have to rebut

false

t/f. if two defendants are negligent but only one could have caused the plaintiff's injury, the burden is on the plaintiff to prove which defendant caused her injury

false

t/f. in determining whether a defendant acted reasonably, the jury must consider the situation from the defendants perspective

false

t/f. in most jurisdictions loss of companionship can be recovered in reference to a minor child but lost services and earnings cannot

false

t/f. inflation clearly has no effect on the discounting of present-value awards

false

t/f. knowledge of remarriage of a surviving spouse is information jurors are usually given, at least during voir dire to ensure that no juror knows the new spouse

false

t/f. loss of consortium is available only to spouses and not to parents

false

t/f. most courts consider a defendants violation of a statute as evidence of mere negligence rather than negligence per se, and mere negligence can can be negated by evidence of due care

false

t/f. nominal damages cannot be awarded in intentional tort and strict liability cases but can be awarded in negligence cases

false

t/f. professionals who are novices are not held to the same standard of care as other more experienced members of the profession

false

t/f. punitive damages are designed to make a plaintiff whole

false

t/f. structured settlements are severely restricted in how they can be settled

false

t/f. the Grimshaw court concluded that high punitive-damage awards were not necessary because because governmental sanctions are effective deterrents to manufacturers who make defective products

false

t/f. the physical characteristics of a defendant are never taken into consideration when determining the reasonable person standard

false

t/f. the plaintiff must prove with clear and convincing evidence that the defendant was the cause of her injuries

false

t/f. under the common law a plaintiff's complaint survived his death

false

t/f. under the majority rule, when a criminal statute is violated, courts do not apply the criminal statutory standard to criminals

false

t/f. violation of a statute always imposes an absolute duty of compliance

false

t/f. when confronted with a plaintiff who has seen injury occur to others, courts have rejected the use of the palsgraf "zone of danger" test

false

t/f. with the market-share-liability theory, the plaintiff can prevail even if he cannot prove the nature of the defendant's conduct

false

under the ----- ----- doctrine the owner of a vehicle is liable for those members of the household she allows to drive her vehicle

family-purpose

in Sindell v. Abbott Laboratories, the court

felt the defendants were in a better position to bear the cost of the plaintiff's injuries than was the plaintiff; reasoned that when there was a conflict between an innocent plaintiff and negligent defendants, the plaintiff should prevail; concluded that any defendant manufacturer that could not prove that it had not produced the dosages of DES consumed by the plaintiff's mother would be liable for the portion of the judgement that represented its share of the DES market at the time of the mother's consumption

give an example of a function that is usually protected by immunity and of one that is generally not

fire departments and schools; gas and water utilities and city airports

proximate cause boils down to a question of -----

foreseeability

t/f. compliance with a statute does not necessarily establish that a defendant was not negligent

true

pain and suffering

general damages

What is the difference between general and special damages?

general damages are of the type that generally result from the kind of conduct engaged in by the defendant; special damages are specific or unique to the plaintiff ex. of general: compensation for pain and suffering ex of special: medical expenses, lost wages, future impairment of earnings in most cases special damages need to be specifically pleaded where general damages do not

under the learned hand formula, the ----- and ----- of harm created by the defendants conduct are considered

gravity; probability

What duty of care does a person have once he has begun to render emergency aid?

he has to continue the emergency aid while administering reasonable care so as to not leave the plaintiff in worse condition than when he began the care

professionals are held to a ------ standard of care than those outside the profession

higher

cause that contributes to plaintiffs injuries

intervening cause

ordinary medical malpractice is an example of a(n) ------- cause whereas a fire or a flood is an example of a(n) -------- cause

intervening; superseding

What is the family purpose doctrine?

holds the owner of a car vicariously liable for the torts committed by those members of his household whom he allows to drive his car

what administrative problem arises in the context of comparative negligence?

how should percentage of fault be assigned? should fault be based on extent of party's conduct as suggested by the Uniform Comparative Fault Act? or should fault be based on the extent to which the plaintiff's conduct deviated from a reasonable standard of care?allotment of percentage of fault to more than 2 people?

duty to inspect for hidden dangers

invitee

member of the public invited to enter possessors land for purposes for which land is held open to the public

invitee

workers who enter store to make repairs

invitee

when is the defense of emergency a viable defense to a negligence claim? when is it not?

if death is imminent and treatment is absolutely necessary for the patient's protection, the defense of emergency may be viable. if the emergency is caused by the physician's negligence, he cannot use it as a defense

Under what circumstances will the courts find an unforeseeable intervening cause not to be a superseding cause

if it led to the same type of harm as that threatened by the defendant's negligence

what is the difference between a negligence and a battery cause of action based on failure to inform?

if patient is in ignorant of what is to be done or if physician receives consent for one procedure but then does another, an action for battery will lie. if the patient is aware of the procedure and signs the consent form but does not clearly understand some of the risks, this cause of action is negligence

under the learned hand formula a defendant is liable

if the burden of precaution equals the gravity of harm multiplied by the likelihood of harm

under what conditions are courts unlikely to enforce a release in which the plaintiff expressly assumes the risk?

if the defendant has unusual bargaining power and if she uses her power to compel the plaintiff to sway liability

What is the status of automobile-guest statutes today?

in 1970s they were repealed or found unconstitutional. Today only a few states still have such statutes in effect

What is the difference between a wrongful death action and a survival action? a. what can be recovered in a survival action? In a wrongful death action? b. what defenses can be raised in each? c. can the remarriage of a spouse be brought up during a case or during voir dire in a wrongful death action? d. how are survival actions and wrongful death actions unique in tort law?

in a survival action the injured party's claim survives his death. in a wrongful death action, third persons can recover for losses they sustained as a result of the decedent's death a. possibility of double recovery exists in survival action. therefore damages restricted to decedents medical expenses, lost earnings prior to death, and pain and suffering. in wrongful death action, damages limited to pecuniary or economic losses caused by the decedent's death. pecuniary value attached to sex, companionship, moral guidance b. may argue decedent was contributorily negligent or that he assumed the risk, or if decedent failed to file an action until after statute of limitations had run will wrongful death or survival action be barred? c. most courts refuse to allow evidence of remarriage, even if used for the limited purpose of prospective jurors being acquainted with new spouse d. wrongful death is unique because it centers around the interpretation of statutes.

---- ----- value refers to the amount property can be sold for on the open market

fair market

voluntary sale by leisurely seller and willing buyer

fair market value

For the attractive-nuisance doctrine to apply, the possessor need not be aware that children are likely to trespass on his land or have reason to know that the condition poses an unreasonable risk of serious injury or death to trespassing children

false

t/f. A defendant cannot be found liable if he has no legal duty to protect the plaintiff

false

t/f. A landlord who hires an independent contractor to do repairs cannot be held liable for the contractors negligence

false

t/f. A possessor must warn trespassers of dangerous activities in which the possessor is engaging on his land

false

t/f. A seller's liability ceases when the buyer takes possession of the land even if the seller fails to disclose a dangerous condition that she should realize the buyer will not discover

false

t/f. A tenant is potentially liable for injuries occurring in common areas, such as elevators and stairways

false

t/f. All possessors have an obligation to remove trees that expose people outside the possessor's premise of an unreasonable risk of harm

false

t/f. An invitee does not lose her invitee status just because her reason for being on the premises becomes social rather for business

false

t/f. In evaluating a defendant's conduct, a jury is allowed the benefit of information the defendant did not have at the time she acted

false

t/f. In the united states the winning party is entitled to recover for his expenses of litigation, including his attorneys fees

false

t/f. Modern courts do not allow recovery for fetuses who have defects because of injuries sustained in utero, nor are wrongful-death actions allowed for fetuses who are stillborn as a result of injuries sustained by the defendants actions

false

t/f. Tavern owners, but not social hosts, can be held liable for the negligent acts of those to who whom they serve liquor

false

t/f. The Good Samaritan statutes do not protect people who provide aid in good faith if they end up injuring the plaintiff

false

t/f. The analysis of duty is very different for a public entity than it is for private individuals

false

t/f. Under the Learned Hand Formula a cost/benefit analysis is rejected.

false

t/f. Under the common law a defendant has no legal duty to aid a plaintiff in distress unless the defendant can assist the plaintiff without causing harm to himself

false

t/f. a plaintiff can be contributorily negligent and still rely on the doctrine of res ipsa loquitur

false

t/f. a plaintiffs impairment need not be permanent in order for her to recover for future losses

false

t/f. a posted notice of warning is sufficient for any licensee

false

t/f. a reasonable person is never expected to anticipate the criminal acts or intentional torts of others

false

t/f. a third person's criminal or intentionally tortious conduct is never considered a superseding cause

false

t/f. actual causation relates to the closeness of the connection between the defendant's conduct and the plaintiff's injuries

false

t/f. adherence to custom is conclusive evidence of reasonableness of conduct

false

t/f. children who engage in activities not necessarily reserved for adults are always held to the standard of care of a reasonable adult

false

t/f. courts generally do not hold insane people to a reasonable person standard because they should not be held responsible for their actions

false

t/f. day-in-the-life videos are generally inadmissible because they unfairly appeal to the jurors sympathies

false

t/f. defendants in wrongful death actions are not allowed to raise the defenses they could have raised against the decedent

false

t/f. employers cannot be held liable for punitive damages resulting from torts committed by their employees

false

t/f. even though a defendant begins to render emergency assistance, he is not legally obligated to continue

false

t/f. general damages are unique to the plaintiff

false

t/f. if an intervening cause is unforeseeable, a defendant is never liable

false

Who is considered an invitee, and what duty of care is owed to an invitee? a. how can one use ones licensee status?

invitee is invited by possessor onto her land to conduct business. invitee can be public invitee or business invitee. possessor owes highest duty of care to invitee. must inspect premise of hidden dangers. must use reasonable care in inspecting even though there is no duty to ferret out all of the hidden dangers. a. loses status if one goes to uninvited part of premise. if visitor is mistaken about premise limits open to him, he will still be treated as an invitee. will lose invitation even if one gets explicit authorization to enter part of premise if one is entering purely for his own benefit. invitee also loses status if he stays on premise beyond what is reasonably necessary to conduct business.

proximate cause

is a policy question

the question of duty

is a threshold question

the rescue doctrine

is based on the premise that the rescuer would not have been injured if not for the negligence of the tortfeasor

A superseding cause

is exemplified by gross negligence of a rescuer

What does the issue of proximate cause boil down to, and why do courts struggle with this concept?

it boils down to a question of foreseeability. Is a defendant liable only if her conduct poses a foreseeable risk to the plaintiff? Proximate cause is basically a policy question. It allows courts to cut off liability in cases in which it would be inherently unfair to hold a defendant liable.

in what respect is immunity a complete defense?

it completely absolves the defendant of all liability

Are professionals held to a local or national standard of care?

it depends on the jurisdiction. some states have opted for a local standard with the acknowledgement that expectations of reasonableness are dependent on locale. other states are in favor of a national standard due to the elevated expectations of professionals.

a plaintiff cannot resort to the doctrine of res ipsa loquitur if

it is just as likely that someone other than the defendant caused the plaintiffs injuries

what is the purpose of statute of a limitations? a. when does a statute accrue? b. what is the discovery doctrine, what is its purpose, and why is it sometimes criticized? c. what is the statute of repose, and what is a potential problem with this statute?

it limits the time in which an action can be brought a. when there has been an actual injury to the plaintiff's person or property b. provides that a statute does not begin to run until the injury is, or should have been, discovered. criticized bc it adds to rising cost of medical malpractice insurance c. statutes designed to limit a manufacturer's liability. begins to run at the date of a sale of a product. few suits are prevented as few plaintiffs are actually injured. some courts have found statutes of repose to be constitutionally impermissible

Why might it be to a defendant's advantage to discount an award of future damages?

it prevents a plaintiff from realizing an unwarranted windfall and reduces losses to the defendant

is proximate cause a jury question or a question for the judge?

it's a jury question as long as there is a possibility that reasonable persons could differ on this issue

what is the justification for the development of the comparative-negligence standard?

its an alternative to the all-or-nothing approach of the contributory negligence system

elevated to licensee

known trespasser

what are the primary reasons for most legal malpractice claims?

lack of communication, poor client relations, unreasonable expectations clients have due to the media glamorizing personal injury cases

what types of activities constitute the unauthorized practice of law? a. why is it important that attorneys review all of the work produced by their legal assistants? b. how does the relationship legal assistants have with clients complicate the issue of unauthorized practice of law?

legal assistants cannot give legal advice. a. so the legal assistant knows what constitutes as legal advice, and legal assistants must always consult an attorney before answering a client b. sometimes they have more contact with the client than the attorney, and even if they know the answer to a legal advice question they have to consult the attorney first to avoid negligence

which officials are granted immunity and under what conditions is this immunity granted?

legislators and judges as well as some other public officials so long as the act complained is within the scope of their duties

In assessing the value of a case, an attorney

may consult trial reporters and professional journals

To what extent is a seller of land liable to a plaintiff injured by a defect the seller does not disclose to the buyer? a. what if the seller intentionally covers the defect?

liable if the seller should be aware of the dangerous condition. released from liability once buyer takes possession of property. a. if the seller hides the defect intentionally the sellers liability will continue until the buyer actually discovers the condition and has a reasonable time to correct it

What are the duties of a landlord?

liable to tenants and tenants licensees for dangers the landlord knows or should know about that the tenant has no reason to know about. Landlord has higher duty if tenant is holding premise open to the public

Social guest in automobile

licensee

duty to warn of dangerous conditions

licensee

social guest who performs incidental service for her host

licensee

under the common law a social guest is classified as a(n) ----- whereas someone with a business purpose is classified as a(n) ------

licensee; invitee

in some states plaintiffs who file a wrongful death action can recover for

loss of companionship and sexual relationship; monetary contributions the decedent would have made during his lifetime to the plaintiff beneficiary; loss of moral guidance

compensation for lost services

loss of consortium

with the ------ ------ ------- theory the plaintiff can prevail if she can prove the defendants were negligent even though she cannot show which defendant caused her injury

market share liability

a possessor

may be obligated to take steps to reduce the danger even if an invitee is aware of and appreciates the danger involved

duty of plaintiff

mitigate damages

how have states that have adopted comparative negligence treated the last-clear-chance-doctrine?

most have not recognized it, and some have abolished it altogether

------ ------- programs are software programs that help attorneys evaluate the value of their case, whereas ------ are compilations of verdicts and settlements pertaining to specific injuries, doctors, attorneys, and so forth

personal valuation; compendiums

When is it appropriate to award nominal damages, and when is it appropriate to award punitive damages?

nominal damages are awarded when no actual damages are proved but a tort is shown to have been committed. nominal damages are not available in negligence cases; punitive damages are intended to punish the defendant for reckless or egregious misconduct and deter others from engaging in the same or similar wrongful conduct

is a professional negligent by definition if the client experiences a negative outcome?

no, as long as long as it is within reasonable foresight

is a professional negligent if she chooses a course of action that is different from the one that many other professionals would have chosen?

no, the rule of reasonable care does not require that all professionals choose the same course of action. if, however, there is only one recognized method of treatment in a field and the professional opts for another method, she will be considered negligent

no actual damages

nominal damages

Why are most personal injury cases handled on a contingency-fee basis?

on a contingency-fee basis, the attorney agrees to provide a service for a fee based on the clients recovery. punitive damage awards allow a plaintiff to pay attorneys fees and and still retain compensation for her own losses. also allows those persons who would ordinarily be financially incapable of pursuing their claims to do so

How is the fair market value of property determined?

on the basis of the market at the place and time that the wrong occurred. furthermore, market value constitutes the highest price one seeking to sell the property could have realized and not the lowest price at which it could have been sold

why was interspousal immunity created and what is its status today?

out of precept that husband and wife were one entity and could not sue each other. majority of states have now abolished it. even states that still have it have applied certain limitations

in cases involving physical injury, mental suffering is considered ------- because it is attached to the physical injury

parasitic

To what standard of care are people held in emergency situations?

people are not expected to act with the same rationale and calm of a less stressful situation, but even in an emergency a defendant is expected to act reasonably, and if he does not, he can be found liable for his actions

those who are generally held to the standard of care of a reasonable person include

people who are emotionally unstable

the ------ ----- technique assigns a numerical value to suffering on a daily or hourly basis

per diem

What conditions must be met to have an attractive nuisance? a. what characteristics of a child are taken into consideration when deciding whether the attractive nuisance doctrine applies?

possessor is liable if he maintains a dangerous condition on land that induces children to enter the premise because it is enticing to play. 1. possessor knows nuisance is on a part of land children are likely to trespass 2. possessor must have reason to know of condition and know that it poses an unreasonable risk of death or serious injury to children 3. bc of their youth, the children must not have discovered the condition or realized the danger posed by coming into the area made dangerous by the condition 4. benefit of possessor in maintaining the condition in its dangerous form must be slight in comparison to the risk posed to the children 5. the possessor must fail to use reasonable care to eliminate the danger or to protect the children a. age, experience, and intelligence of a child may determine whether attractive nuisance doctrine applies

what does the informed-consent doctrine require doctors to disclose?

possible hazards, complications, and expected and unexpected results of treatment, as well as risks of any alternative treatments

initiated by defendant to reduce payment

present value

structured settlements

prevent the plaintiff from freely spending her money

discounting of awards

prevents the plaintiff from receiving a windfall; requires use of annuity and life expectancy tables; involves calculations involving the present value of a dollar

How do the courts treat professional and amateur athletes differently when it comes to impliedly assuming the risk?

professional athletes are assumed to be more cognizant of the risk and more willing to accept them than amateurs.

difference between value of property before and after tort occurred

property damaged

value of property at the time and place the tort occurred

property destroyed

legal cause

proximate cause

some people believe punitive damages

punish defendants without the benefit of the constitutional safeguards available under criminal law; place a social-policy decision in the hands of those who lack the necessary information to make an informed decision; deter future tortfeasors from engaging in conduct that is potentially dangerous to others

------- damages are reserved for those defendants who act recklessly or with an "evil mind"

punitive

if a plaintiff can raise the issue of ----- damages, he can show the wealth of the defendant

punitive

punish tortfeasors

punitive damages

What is a reasonable person expected to know?

qualities and habits of human beings and animals and the qualities, characteristics, and capacities of things and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community

Can a fetus recover for injuries sustained in utero as a result of the defendants actions?

recovery in most instances where a casual link between the defendants act and where the fetus's injury can be proven

------ ------- ------ means "the thing speaks for itself"

res ipsa loquitur

why is it important for professionals to maintain adequate records?

so they may prove that no negligence occurred, and the passage of time weakens our memories

Why are contingency fees criticized?

some say it creates a conflict of interest between client and attorney in reference to settlement offers, bc in some cases attorneys are overcompensated

------ damages must be specially pleaded in a complaint

special

Which of the following characteristics of a defendant are taken into consideration when assessing reasonableness? a. mental state b. intelligence c. emotional state d. intoxication e. physical challenges such as blindness

special allowances are not made for defendants who are emotionally unstable or of substandard intelligence. Majority rule does not impose liability where there is an extreme mental deficiency. An intoxicated person is held to the standard of a reasonable person. A blind person is held to the standard of a reasonable blind person

medical expenses, lost wages

special damages

to prove negligence per se, the plaintiff must show that the defendant violated a statute and that the

statute was designed to protect against the kind of harm sustained by the plaintiff and the plaintiff was a member of the class the statute was intended to protect

What are automobile-guest statutes and why were they introduced?

statutes used to limit duty of care. holds a driver of a vehicle liable to a guest in his car only under circumstances of extreme misconduct. introduced for two reasons. first is bc liability insurance was not widely available and second, when insurance was available collusion between driver and guest was feared.

what is the rationale for contributory negligence?

stems from the notion that negligent plaintiffs should be punished for failing to protect their own safety

a(n) ------ ------ results in periodic payments to the plaintiff

structured settlement

eliminate plaintiff's need to invest

structured settlement

insurance company's right of reimbursement

subrogation

concurrent causes

substantial-factor test

Cause that precludes defendant liability

superseding cause

brought by decedent's estate

survival action

with an attractive nuisance

the benefit of maintaining a condition in its dangerous form must be slight compared with the risk posed to the children for the doctrine to apply

what does a professional who decides to allege contributory negligence usually argue?

the client refused to comply with her instructions or was otherwise uncooperative

What do courts do when plaintiffs cannot be fairly compensated based on a fair market value because of personal value the property has to the plaintiff?

the court considers the original cost of the property, the use made of the property, and its condition at the time of the tort. The mental distress that the plaintiff suffers as a result of being deprived of the property is not usually compensable.

How do the alternate-liability and and market-share-liability theories assist plaintiffs in proving their case?

the defendants bear the burden of proof to show who actually caused the harm

how does a public official's immunity relate to government immunity?

they are separate in the sense that if if a governmental immunity is abolished the public official may still be protected by her own immunity. in contrast if the government is immune the public official may still be held liable.

How does the duty of a public entity compare to that of a private individual?

they are the same principle.

What duty is owed to a known trespasser? a. what duty is owed to someone who trespasses on a limited area of a possessor's land?

the possessor owes a duty of reasonable care to the known trespasser. Thus, known trespasser is elevated to the status of licensee. a. owner must anticipate traversal and would be required to use reasonable care for ones protection.

in toxic court cases

the problem faced by plaintiffs is proving that the toxin in question is capable of producing the type of injury suffered by the plaintiff

What is the problem with awarding damages for pain and suffering? a. how do day-in-the-life videos assist jurors? b. how does the per diem technique assist attorneys in making their arguments regarding awards for pain and suffering?

the problem is no accurate monetary value can be affixed. a. used to graphically represent the plaintiff's suffering. designed to display the plaintiff's everyday activities prior to the incident and the full extent of how the plaintiff's injuries have limited her life b. it attempts to assign a numerical value to the amount of suffering experienced on a daily, hourly, or even minute by minute basis by the plaintiff.

What is the relationship between duty and proximate cause?

the question is essentially interchangeable

adult who enters possessors land with possessors awareness but without his permission

trespasser

child drawn to possessors land who enters without possessors permission

trespasser

must refrain from intentionally harming

trespasser

t/f. A landlord must be given reasonable time to make repairs after being notified of the condition needing repairing

true

t/f. A plaintiff will lose her invitee status if she goes to part of the premises that extend beyond her invitation unless she reasonably believes the premises are open to the public

true

t/f. A reasonable person is expected to know matters of common knowledge and scientific and natural laws of common knowledge to laypersons

true

t/f. A tenant is liable for injuries to an invitee resulting from a defect that could have been discovered using reasonable care even if the tenant did not actually discover it

true

t/f. If a seller hides a defect, his liability will continue until the buyer actually discovers the defect and has a reasonable amount of time to correct it

true

t/f. In some cases courts have found that landlords do have an obligation to protect tenants from criminal attacks

true

t/f. Landlords have a duty to protect a tenant's invitees and licensees from dangers of which the landlord is aware but the tenant has no reason to know about

true

t/f. Losses for impaired earning capacity include recovery for both past earnings and future losses

true

t/f. Most courts require plaintiffs to prove that the evidence is more available to the defendant than to the plaintiff before they will allow the doctrine of res ipsa loquitur to be applied.

true

t/f. Not all states use the common law distinctions of trespasser, licensee, and invitee

true

t/f. Res Ipsa Loquitur is a court-created doctrine that allows the plaintiffs to create an inference of negligence without having to provide direct evidence of negligence

true

t/f. To assess whether a defendant breached his duty of care, it must be determined whether the defendant acted reasonably

true

t/f. Under the common law the limitations on the liability of possessors was to encourage full utilization of the land

true

t/f. courts will award damages for emotional suffering even if there is no physical suffering when there is a negligent mishandling of a corpse or transmission of an erroneous message about the death of a family member

true

the duty to mitigate damages is also known as the ----- ----- rule

unavoidable consequences

Why are courts reluctant to allow recovery for shortened life expectancy?

under common law, damages must be provided for by a statute. furthermore, there has to be a desire to avoid an issue so fraught with incalculable variables as well as fear that such compensation would result in duplication of damages

what is the difference between pure comparative negligence and the 50 percent approach? a. what is the difference between the "not greater than" and "not as great as" approach? b. why is this difference significant?

under pure comparative negligence, the plaintiff can recover no matter how negligent they are and plaintiff's recovery is reduced in direct proportion to her degree of negligent contribution to her own injuries. in the 50 percent approach, a plaintiff cannot recover if he is more than 50 percent responsible for his own injuries a. "not greater than" approach aka 49 percent rule the plaintiff is barred if her negligence is greater than the defendants. under "as great as" rule the plaintiff is barred as soon as her negligence matches the defendant's b. significant bc juries tend to assign a 50:50 apportionment in terms of blame, so it makes all the difference in whether the plaintiff gets to recover

What does the collateral-source rule prevent defense attorneys from doing? a. what is the rationale for this rule? b. what is the subrogation, and how does it relate to this rule?

under the collateral-source rule the plaintiff is entitled to recover previously reimbursed damages again from the defendant a. rationale is intended to promote justice and prevent the tortfeasor from benefiting or mitigating damages in the amount of payments or compensation that the injured party received from a collateral source b. the company making the plaintiff's payment has a right of reimbursement out of any judgement the plaintiff receives is known as subrogation. it prevents double recovery for plaintiff

What is the last-clear-chance-doctrine? a. What variations to this doctrine exist? b. What is the first-clear-chance-doctrine? c. When is the last-clear-chance doctrine not applicable?

under this doctrine, if the defendant has an opportunity that is unavailable to the plaintiff to prevent the harm that occurs and does not take it, the defendant will remain liable despite plaintiff's contributory negligence a. plaintiff is helpless and: defendant discovers danger but negligently fails to avoid it or defendant fails to discover danger because he is inattentive; plaintiff is inattentive but not helpless and: defendant discovers danger but negligently fails to avoid it b. rule is that last-clear-chance doctrine is inapplicable when the defendant's original act of negligence precludes her from avoiding the accident after she discovers the plaintiff's peril c. if the plaintiff is inattentive and not helpless and the defendant is inattentive, defendant is unable to avoid harming plaintiff because of the first-clear-chance doctrine

employers are ----- liable for any torts committed by an employee during the scope and furtherance of his employment

vicariously

in assessing future lost wages, attorneys consult with ----- ------ ----- counselors who help predict what the plaintiff will be able to do and how much schooling will be required

vocational rehabilitation

under the ------ ------ doctrine, a defendant can be liable to a plaintiff for beginning a service that he subsequently abandons to the plaintiffs detriment

voluntary-undertaking

what must be shown before a plaintiff will be considered to have impliedly assumed the risk?

when her conduct shows that she was aware of the risk in question and voluntarily agreed to bear that risk herself

What duty of care does a possessor owe to those outside its property? a. what distinction is made between artificial and natural conditions?

when the hazardous condition is artificially created by the possessor a. artificial conditions include manmade structures; additions to land such as tress; alterations to the land such as excavations. if condition is natural possessor has no duty to remove it.

------- -------- statutes allow spouses and children to recover for losses they sustained as a result of the decedent's death

wrongful death

brought by survivors of decedent

wrongful-death action