LSB Exam 3 (HW questions)
Law based on the Restatements that cover individuals who are injured by a product are known as __________________ laws.
product liability
In addition to showing the cause in fact, the plaintiff also must prove the tortfeasor's conduct was the _______________________ of the damages.
proximate cause
In the tort of negligence, the element of _________________ is whether there was a link between the breach of duty and the damages suffered by the injured party.
proximate cause
If a defamation victim is a ____________________, such as a candidate for political office, the defamation must have been committed with ____________________ or reckless disregard for the truth.
public figure, malice
One of the key elements to prove defamation is ______________________ or dissemination to a third party.
publication
In a negligence case ________________ damages may be awarded, but only when the tortfeasor's conduct was extremely reckless or willful or wanton.
punitive
If a person has begun to render assistance when she has no duty to do so, she must render assistance with ______________________.
reasonable care
Tort law also applies when one party fails to act ____________________ and harm occurs, even though that party did not intend for harm to occur.
reasonably
If a plaintiff (former patient) of Dr. Franks introduces x-rays of instruments left in her abdomen after a procedure, she could argue ___________________________.
res ipsa loquitur
The doctrine of ____________________ (Latin for 'the thing speaks for itself") allows an injured party to create a legal presumption that the tortfeasor was negligent based on certain facts.
res ipsa loquitur
Business managers may encounter tortious interference with contracts in the context of _______________________.
restrictive covenants
One objective of a pretrial conference is to encourage ______________________.
settlement
Informal ADR can take the form of (1) a _______________ agreement, or (2) an agreement to ________________.
settlement, cancel a contract
Generally, defamation can include ____________________ or ____________________.
slander, libel
________________ recognized as a tort when the innocent party relies on a material misstatement of fact in a contract and suffers a pecuniary loss.
Fraud
In the __________________________ case, the US Supreme Court held that the FAA applies to arbitration clauses contained in employment contracts even when an employee brings suit against an employer for violating federal anti-discrimination laws.
Gilmer v. Interstate
________________________ is an important source of information and advice, but business managers and owners must make critical decisions regarding how to resolve disputes that are best for the company.
In-house counsel
____________________ ADR often involves the parties negotiating ________________ or through intermediaries to arrive at a mutually agreeable solution without the use of a formal process.
Informal, face-to-face
In order for an injured party to recover damages for tortious interference with contract, the tortfeasor must have: _________________________.
specific knowledge of the contract, caused specific damages to the injured party, and actively interfered with the contract
In order for one party to maintain a lawsuit against another party, she must have _______________ to sue.
standing
The Restatements of Torts provide for _______________________ in cases where neither intent nor negligence need to be proved.
strict liability
If tomatoes leave the processing plant in a reasonable condition (not dangerous) and then are contaminated or damaged in the next stage of the commercial chain of delivery, may not make the manufacture liable for ______________________ but make the manufacturer liable for _____________________.
strict liability, negligence
Under the _____________________ rule, one who negligently manufactures a product is liable for any injuries to persons (and, in some limited cases, property) proximately caused by negligence.
MacPherson v. Buick
____________________ is a hybrid ADR in which both parties first submit to mediation for a set periods of time (perhaps two business days). If the mediation fails, the process then moves to binding arbitration.
Med-Arb
______________________ is relatively informal and does not require as much time or preparation as arbitration.
Mediation
________________________ refers to the liability of any seller (including the manufacturer, retailer, and any intermediary seller such as a wholesaler) of a product that, because of a defect causes harm to a consumer.
Product liability
The most appealing option for pursing a products liability case is the doctrine of ______________________, because the injured party need not prove the elements of ___________________.
strict liability, negligence
Suppose Harry purchases a new Ford truck from a dealer. two weeks later Harry is injured when the wheel breaks on the highway, causing Carol in another vehicle to be injured. Under the MacPherson rule, is Ford liable for Carol's injuries?
Yes, if Harry can prove negligence, Ford will be liable for Carol's injures as well.
Contract law allows a contract to be canceled if a party makes false representations concerning _________________.
a material fact
The Restatement set out a six-factor test for ______________________ activities that may trigger strict liability, including the possibility of ____________________ by exercising reasonable care.
abnormally dangerous
Strict liability is recognized in the Restatements primarily for ___________________ and for _______________________
abnormally dangerous activities, defective products
A tortfeasor may be held strictly liable in cases primarily involving ___________________ and __________________ activities.
abnormally dangerous, defective products
Generally, if US Senators are debating a bill on the Senate floor, they are entitled to ____________________ privilege.
absolute
Television broadcast employees are protected by a(n) ____________________ protection from defamation liability as long as they act in good faith, without malice or reckless disregard for the truth.
absolute, innate, qualified
Privilege can be either _____________________ (defendant need not offer any further evidence to assert the defense), or __________________ (defendant offers evidence of good faith with no malice).
absolute, qualified
A public figure must provide evidence that a defamer had '__________________' the statement was false or had a ____________________ for the truth.
actual knowledge, reckless disregard
One of the most common forms of ADR is _______________________ in which an individual (or a panel) conducts a hearing between the parties in the dispute.
arbitration
The most common formal ADR methods are:
arbitration, mediation, expert evaluation
A plaintiff _______________________ if she knew about a risk and disregarded the risk by continuing with the activity at issue for her own benefit.
assumes the risk
An exception to the general duty to act (or rescue) is _____________________ which occurs when one party renders assistance even when there is no legal obligation to do so.
assumption of duty
A tortfeasor (defendant) can assert the defense of ____________________________ when the plaintiff knows that a substantial and apparent risk is associated with certain conduct, and the plaintiff proceeds anyway.
assumption of risk
If a product is proven to _________________________, a plaintiff need only show that the defective product was the cause of the injuries and that the product cased an actual injury that resulted in damages.
be unreasonable dangerous
A(n) ______________ trial is when the judge acts as both the finder of fact and the finder of law at the same time.
bench
If one party owes another a legal duty, then failing to meet these obligations is known as a(n) ________________________.
breach of duty
The overwhelming majority of courts use a cause-in-fact to prove causation, which is also known as the ___________________.
but-for test
Litigation generally refers to dispute resolution processes for __________ (or _____________) cases in public courts of law.
civil, noncriminal
Generally, tort law is governed by ___________________ law principles and the __________________ of torts.
common, Restatement
If the plaintiff's injuries play a factor in the harm suffered, the Restatements allow the defendant to assert the defense of __________________ negligence and apportion the damages accordingly.
comparative
Formal litigation begins when the plaintiff initiates a lawsuit by filing a(n) ___________________ with the local clerk of court.
complaint
To prove a legal causation, the plaintiff must prove that the tortfeasor's: ________________________ and ______________________.
conduct was the closest-in-proximity to causing the damages and liability was not canceled due to superseding cause
Dispute resolution is a crucial part of business and strategy that requires a thoughtful _________________ analysis.
cost-benefit
Once the initial pleadings are filed, most lawsuits move into the ___________________ stage, in which the parties attempt to collect evidence for trial.
discovery
The arbitration hearing is similar to a court setting but is less formal, since there is no _____________________ and the rules of __________________ do not apply.
evidence, discovery
The primary functions of a mediator are to: to ___________________, to ___________________, and to _____________________.
facilitate discussion, ensure communication between both parties, listen to parties grievances
In order to show that a superseding act limits a tortfeasor's liability, the elements of ______________________ must be proven.
foreseeability
The law imposes a general duty on everyone to act reasonable and the scope of that duty is defined by _________________________.
foreseeability
A product may be defective if it is designed improperly in that _____________________ risks of harm posed by the product could have been reduced or avoided by some ___________________.
foreseeable, alternative design
Courts only allow recovery for tortious interference with prospective advantage under limited circumstances where the tortfeasor's conduct was ________________________.
highly anticompetitive
A missile launcher that fires properly may be properly designed, manufactured, and labeled but is nonetheless ______________________.
inherently dangerous, unavoidably unsafe
Television broadcast employees are protected by a (n) ___________________ protection from defamation liability as long as they act in good faith, without malice or reckless disregard for the truth.
innate, qualified, absolute
The term ___________ is sometimes used as a synonym for trial, but in reality, the scope of litigation is much broader and includes pretrial as well as posttrial events.
litigation
The following are all factors in defining what may constitute an abnormally dangerous activity: _____________________________.
location of the activity, activity involves a high degree of risk of some harm, eliminate risk by exercising reasonable care
The Greenman v. Yuba Power Products case held that "a ___________________ is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a ____________________ which causes injury to a human being."
manufacturer, defect
Most state and federal courts require ______________________ or nonbinding __________________ prior to allowing certain civil lawsuits to go to trial.
mediation, arbitration
A(n) _____________________ is a defense that gives the merchants the right to briefly detain a suspected shoplifter as long as the merchant _____________________ the suspected shoplifter.
merchant's privilege, does not coerce
A(n) _______________________ is an alternative ADR featuring a neutral party (usually an expert) in which condense versions of the case are presented to the top management from both sides.
mini-trial
Tort law allocates liability on a fundamental difference between ______________________ (an act by one party that harms or endangers another party) and _________________________ (the failure to act or intervene in a certain situation).
misfeasance, nonfeasance
In order for strict liability to apply, the product must reason the end user without ____________________ change.
substantial
A plaintiff's standing to sue has three requirements: the party must have (1) _________________, (2) ___________________, and (3) _________________.
suffered a direct concrete harm, suffered an injury in fact, and articulable legal redress
Plaintiff generally files a(n) _________________ along with a copy of the plaintiff's complaint which gives formal ______________________ to the defendant that she has been named in a lawsuit and that an answer must be filed within a certain period of time.
summons, notification
Sometimes an intervening event, called a(n) _______________________, takes place after the tortfeasor's negligent act.
superseding cause
A(n) _______________ is a ________________ wrong in which one party has acted, or in some cases failed to act, and that action or inaction causes a loss to be suffered.
tort, civil
An injured party may sue for ___________________ when a competitor makes false statement that disparages a competing product.
trade libel
A defendant in a defamation case may avoid liability if the defamatory statement was ____________________.
truthful, privileged
A failure to adequately warn may render the product _______________________ even absent any manufacturing or design defect.
unreasonable dangerous
A product can be rendered ________________________ by a defect in the packaging such as the requirement of a safety-proof container.
unreasonable dangerous
A product can be rendered __________________________ by a defect in the packaging such as the requirement of a safety-proof container.
unreasonable dangerous
The law imposes a general duty on all parties to act reasonable and not to impart ________________________ to others.
unreasonable risk
Negligence occurs when a tortfeasor causes harm to an injured party by creating an ______________________ risk of harm, regardless of the tortfeasor's _____________________.
unreasonable, intent
Tort law is intended to compensate injured parties for losses resulting in harm from some _________________ conduct by the _______________________.
unreasonable, tortfeasor
A seller of a product may use ______________________ as a defense if the plaintiff failed to use the product in a manner in which an ordinary prudent person would.
misuse of project
Torts fall into one of three general classes:
negligence, intentional torts, strict liability
Courts allow recovery for misrepresentations that are not intentional but are ____________________ misrepresentations in business relationships.
negligent
Courts allow recovery for misrepresentations that are not intentional but are _______________________ misrepresentations in business relationships.
negligent
If the legislature has passed a statute intended to promote safety and one party violates the statute, there is a strong presumption that the party violating the statute is ________________________.
negligent per se
Injured parties generally may not recover for ____________________, unless the parties had a(n) special relationship each other.
nonfeasance
Alternative dispute resolution (ADR) refers to ____________________ methods by which disputes are resolved outside of the court system.
nonjudicial
The 'reasonable prudent person' standard emphasizes that the conduct must be ____________________ reasonable.
objectively
Most courts hold that a manufacturer has a duty to warn - unless the danger is "____________________", and failure to ______________________ may render the product defective.
open and obvious, warn
A tortfeasor (defendant) can claim assumption of the risk if the plaintiff should have known about the risk, but __________________ in the activity.
voluntarily participated
Historically, _____________________ laws were important protection for purchasers of products because they imposed liability even in the absence of negligence.
warranty
In a product liability case, the plaintiff has the option of three different legal theories she may pursue against the tortfeasor:
warranty, strict liability, negligence
Specifically, $ 402A of the Restatement (Second) of Torts imposes strict liability on the seller so long as the productL
was in a defective condition, was unreasonable dangerous
Trade libel requires that the allegedly defamatory statement is made _____________________ or that the statement shows reckless disregard for the truth.
with knowledge that the statement was false
The tort of negligence has specific elements, including:
Breach of Duty, Causation, Damages, Duty
_________________ is the legal process for the orderly exchange of evidence, and both parties have the right to examine all evidence, including evidence that is both inculpatory and _________________.
Discovery, exculpatory
________________________ negligence holds that even 1 percent of negligence on the part of the plaintiff is a complete bar to any plaintiff recovery.
Contributory
In the ________________________ case, the US Supreme Court rejected a challenge by a union member to the legality of an arbitration clause in a union contract.
Penn Plaza v. Pyett
As the finder of law, the ________________ determines what evidence will be admitted, what witnesses may testify, what the jury will hear and not hear, and even what legal arguments the attorneys may present.
judge
After a verdict, the plaintiff becomes a ________________________ and has the right to pursue the defendant's assets to satisfy the debt owed, including ___________________ of wages.
judgement creditor, garnishment
Even thought the plaintiff may prevail at trial, collect the _________________ may be difficult if the defendant's assets are tied up in non-liquid forms, such as _____________________, or are exempt from claims of creditors through a ________________.
judgement, real estate, bankruptcy filing
The losing party may appeal to an appellate court which engages in _____________________________ to decide whether any errors were committed during the trial, and either ___________________ or ____________________ the decision of the trial court.
judicial review, reverse, affirm
The initial consideration in a negligence analysis is whether the tortfeasor owed the injured party a(n) _______________________.
legal duty
A merchant's privilege is may be limited by: ___________________.
length of detention, coercion for payment, location
When a ________________ wishes to file a lawsuit, the first step involves the filling and answering documents that set out the basics of the dispute and alleged damages suffered.
plaintiff
A(n) ______________________ may be filed when the losing party tries to convince the judge that the verdict was flawed.
posttrial motion
A(n) ____________________________ may be filed when the losing party tries to convince the judge that the verdict was flawed.
posttrial motion
The main advantages of ADR include:
potential preserving the business relationship, potential time saving, potential cost saving
Generally, a(n) ____________________ is held a few weeks before trial between the attorneys for the parties and the judge in the case, with no court reporter present.
pretrial conference
A defendant in a defamation case may avoid liability if the defamatory statement was _______________________.
privileged, truthful
