Test Bank For Tort Law, 7th Edition J. Stanley Edwards, J.D.Traci L. Cull, J.D Chapter 1-19

Name:

Class:

Date:

Test Bank For Tort Law, 7th Edition J. Stanley Edwards, J.D.Traci L. Cull, J.D Chapter 1-19

Chapter 01-Overview of Tort Law True / False 1. Under all circumstances, those who create risks should bear the burden of injuries they create rather than those who fall prey to such injury. a. True b. False ANSWER: False 2. A tort is a civil wrong in which a victim is compensated in the form of damages for the injuries they suffer. a. True b. False ANSWER: True 3. Whether conduct is reasonable is sometimes difficult to determine. a. True b. False ANSWER: True 4. The ideas of justice, fairness, and equality are the cornerstones of public policy concerns. a. True b. False ANSWER: True 5. Understanding public policy is essential to tort law. a. True b. False ANSWER: True 6. ―Slippery slope‖ arguments reflect administrative concerns of courts. a. True b. False ANSWER: True 7. Issues of personal and public morality cannot be taken into consideration in tort law. a. True b. False ANSWER: False 8. If there is a statute that exists for a case, the judge is mandated to follow it.

Copyright Cengage Learning. Powered by Cognero.

Page 1

Name:

Class:

Date:

a. True b. False ANSWER: True 9. The Restatement is a set of guidelines created by the courts. a. True b. False ANSWER: False 10. The Restatement has been adopted in all states. a, True b. False ANSWER: False 11. A tort is considered an offense against society. a. True b. False ANSWER: False 12. The purpose of suing under tort law is to punish the offender. a. True b. False ANSWER: False 13. There is no overlap between tort law and criminal law. a. True b. False ANSWER: False 14. The plaintiff in a tort case has the burden of proving their case by a preponderance of the evidence. a. True b. False ANSWER: True 15. Some actions can result in a criminal offense as well as a tort offense. a. True b. False ANSWER: True 16. In tort law, duties are imposed by law rather than by being voluntarily assumed or consented to by the parties. a. True Copyright Cengage Learning. Powered by Cognero.

Page 2

Name:

Class:

Date:

b. False ANSWER: True 17. In a tort action, the remedy is to compensate the prevailing party with the benefit of the bargain. a, True b. False ANSWER: False 18. The primary goal of the blood feud in early societies was compensation for the victim. a. True b. False ANSWER: False 19. An action in trespass requires a showing of fault on the part of the defendant while a trespass on the case does not. a. True b. False ANSWER: False 20. A plaintiff in a trespass on-the-case action must show injury and damage. a. True b. False ANSWER: True 21. A rise in negligence cases led to the disintegration of actions in trespass and trespass on the case actions. a. True b. False ANSWER: True

Completion 22. _________________________ is a tort in which no fault or intent must be shown.

ANSWER: Strict liability 23. The burden of proof for a tort is preponderance of evidence while the burden of proof for a crime must be proven ______________________________.

ANSWER: beyond a reasonable doubt 24. In tort law, it is the ____________________ interest that has been violated, while in criminal law, it is ____________________ interest that has been violated.

ANSWER: individual’s, society’s

Copyright Cengage Learning. Powered by Cognero.

Page 3

Name:

Class:

Date:

25. Tort law looks to the ______________ to determine if an action is universally regarded as right or wrong.

ANSWER: public morality 26. _______________ means that the use of an argument in one case can lead to the same argument in numerous other cases with no end in sight.

ANSWER: Slippery slope argument 27. The ____________________ is frequently cited and used to guide persons through the maze of tort law decisions.

ANSWER: Restatement of Torts 28. The primary purpose of criminal law is ________________ while the primary purpose of tort law is _____________ ANSWER: punishment, compensation 29. A plea of _____________ by a defendant precludes any guilt from being used against them in a civil trial.

ANSWER: nolo contender 30. In barbaric societies, the process used to remedy a wrong suffered by a member of the clan was by means of a(n) ____________________.

ANSWER: blood feud 31. A(n) _________________________ requires proof that the defendant used force directly on the plaintiff or the plaintiff’s property, while a(n) _________________________ requires no showing of force and can be sustained even where an injury was inflicted indirectly.

ANSWER: action in trespass, trespass on the case 32. ____________________ arose as a cause of action as more traffic-related cases came before the courts.

ANSWER: Negligence

Subjective Short Answer 33. What is one argument regarding the allocation of risks in reference to tort law?

ANSWER: Advocates of expanded tort liability see tort law as the knight in shining armor, duly anointed to protect the interests of the consumer. In their perception, manufacturers and those who deliver services are better able than consumers to predict and prevent injuries from the use of their products and services. The burden of injury, they reason, should be borne by those who create risks rather than by those who fall prey to them. The philosophical and political debates on the issue of risk allocation have gained new significance in one of the most recent developments in tort law—product liability.

34. Give a counterargument to the argument you presented in question #1.

ANSWER: Others argue that we have become too paternalistic in our efforts to protect individuals and that we should allow people to bear the consequences of their decisions. After all, they point out, the process of living comes with no guarantees and the assurance of safety is too high a price to pay for freedom. In addition to this philosophical concern, there is reluctance to burden a defendant, particularly an industry, with all losses, for fear of financial ruin.

35. How does the ―slippery slope‖ argument affect decisions made by the courts?

Copyright Cengage Learning. Powered by Cognero.

Page 4

Name:

Class:

Date:

ANSWER: Perhaps you have heard of the slippery-slope argument, which means, essentially, that use of an argument in one case will allow application of that same argument in innumerable other cases. The metaphor is used to show that once you take the first step, it is too easy to fall down the slippery slope to the bottom of the hill, presumably into a morass of undesirable outcomes. The slippery-slope argument is, in essence, an administrative concern. A court fears that if it finds negligence on behalf of the sympathetic plaintiff before it, hundreds of thousands of similarly situated individuals or those whose situations are analogous to the case will also seek redress. The precedential effect of arguments regarding physician-assisted suicide, racial composition of juries, and the use of marijuana for medical purposes are among the many slippery-slope issues considered by the courts.

36. Name two differences between torts and crimes.

ANSWER: TORTS/CRIMES PURPOSE: Compensation/Punishment STANDARD OF PROOF: Preponderance of Evidence/Beyond a Reasonable Doubt INTERESTS VIOLATED: Individual’s Interest/Society’s Interest PROCEDURAL RULES: Civil Rules/Criminal Rules The primary purpose of criminal law is punishment and the primary purpose of tort law is compensation..

37. What is one difference between contract law and tort law?

ANSWER: CONTRACT/LAW TORT LAW DUTIES ASSIGNED: By Parties’ Consent/Imposed by Law OBLIGATIONS MADE TO: Specific Individuals/Society in General In a contract action, the parties have voluntarily and knowingly assumed duties or obligations to others. In tort law, duties are imposed by the law without any express consent or awareness of those involved. The remedy in a contract action is to compensate the prevailing party and provide them what they expected under the contract. Under tort law, the remedy is broader and can include monetary damages for pain and suffering, economic damages, and punitive damages.

38. What are two differences between an action in trespass and a trespass on the case?

ANSWER: Action in trespass/Trespass on the case (wrongful intent or negligence) (No fault)/No force or indirect injury) (Vi et armis)/Negligence (fault required) (Direct use of force)/Strict liability (no fault) Action in trespass required plaintiff alleging that the defendant has used force directly on their person or property. No other showing of fault was required. Trespass on the case allowed recovery in the absence of force or where an injury was inflicted indirectly. Trespass on the case required proof of the defendant’s wrongful intent or negligence.

39. In what sense have we come full circle in tort law in terms of assigning fault?

ANSWER: Strict liability (no fault) reigned supreme during early Anglo-Saxon law and was evident in the action in trespass. Only in actions on the case did the notion of duty and neglect arise. Now, at the beginning of the twenty-first century, strict liability has once again assumed importance in our legal system. More and more modern courts are assigning liability even where there is no showing of fault. The idea behind strict liability being that it would not be fair to require an injured consumer to have to prove every element of their injuries Copyright Cengage Learning. Powered by Cognero.

Page 5

Name:

Class:

Date:

in order for a manufacturer to be liable.

40 Describe how the interests of society or the public policy concerns affect tort law.

ANSWER: Tort law often goes beyond compensating individuals and considers the interests and goals of society at large and the community in which we live. These public policy concerns dictate the norms of the community or the public based on its beliefs and values regarding justice, fairness, and equality. All laws, including tort law, are based in part on the public policy of the society and/or community. Finding the public policy of a law often means looking at the rationale or reason for the law. Understanding public policy is essential to understanding tort law.

Chapter 02-Overview of a Tort Case True / False 1. A complaint must establish the basis for the court’s jurisdiction. a. True b. False ANSWER: True 2. A complaint must include a brief summary of each of the elements of the case along with any basic facts that will be used to prove each element. a. True b. False ANSWER: True 3. A verification must always accompany a complaint. a. True b. False ANSWER: False 4. If a defendant does not answer a complaint, a plaintiff can receive a summary judgment. a. True b. False ANSWER: False 5. An affirmative defense must be proven by the opposing party who brought it up. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 6

Name:

Class:

Date:

6. A counterclaim is a claim raised against any co-party or co-defendant. a. True b. False ANSWER: False 7. A demurrer is a motion stating that the court in which the complaint was filed lacks venue. a. True b. False ANSWER: False 8. One purpose of discovery is to promote the equitable settlement of cases. a. True b. False ANSWER: True 9. Interrogatories are usually answered by or with the assistance of attorneys and under oath. a. True b. False ANSWER: True 10. Deposition testimony can be used to impeach a witness at trial but cannot be introduced at trial if the witness fails to appear. a. True b. False ANSWER: False 11. If a party fails to respond to a request for admissions, those matters within that request will be deemed admitted at trial. a. True b. False ANSWER: True 12. A request for a medical examination may be requested by the opposing party to get a second opinion. a. True b. False ANSWER: True 13 The reason behind disclosure statements is so that the opposing sides have an edge on each other. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 7

Name:

Class:

Date:

14. If an attorney does not want to give up information they think falls under attorney/client privilege, they can file a motion to compel. a. True b. False ANSWER: False 15. To rebut a motion for summary judgment, a party must merely allege that a factual dispute does indeed exist. a. True b. False ANSWER: False 16. One of the reasons behind a pretrial conference is to clarify the issues and defenses to be raised at trial. a. True b. False ANSWER: True 17. The purpose of a motion in limine is to limit the number of questions that can be raised during voir dire. a. True b. False ANSWER: False 18. An attorney has an unlimited number of peremptory challenges. a. True b. False ANSWER: False 19. Cross-examination can be used to impeach a witness. a. True b. False ANSWER: True 20. The majority of jurors decide the outcome of a case during opening statements. a. True b. False ANSWER: True 21. If a party believes that the opposing party has failed to meet its burden of proof at trial, it will move for a summary judgment. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 8

Name:

Class:

Date:

22. Attorneys give relatively little attention to jury instructions because they have little impact on the outcome of a case. a. True b. False ANSWER: False 23. A jury that is asked to deliver a general verdict must provide answers to interrogatories in addition to rendering a verdict. a. True b. False ANSWER: False 24. Counsel’s failure to make the appropriate objections at trial can be remedied later by making a motion for a new trial. a. True b. False ANSWER: False 25. A party that believes a verdict is unsupported by the evidence and law presented at trial may move for a judgment notwithstanding the verdict. a. True b. False ANSWER: True 26. The philosophy underlying res judicata is that everyone must be given unlimited opportunity to make arguments before the courts. a. True b. False ANSWER: False Completion 27. Before initiating a complaint, a plaintiff may want to send the defendant a(n) ____________________ letter in which are detailed the reasons behind his or her claim as well as the plaintiff’s expectations in terms of a settlement.

ANSWER: demand 28. ___________________ is the authority of a court to hear a case.

ANSWER: Jurisdiction 29. Some states require a(n) ______________ which is an affidavit that indicates the plaintiff has read the complaint and to the best of their knowledge all of it is true.

ANSWER: verification 30. If a defendant fails to take any action in opposition to a complaint being served, the plaintiff may be able to get a(n) ____________________.

ANSWER: default judgment Copyright Cengage Learning. Powered by Cognero.

Page 9

Name:

Class:

Date:

31. If a defendant raises a(n) ____________________ defense, he or she has the burden of proving that defense.

ANSWER: affirmative 32. A(n) ____________________ is a claim raised by the defendant against the plaintiff, while a(n) ____________________ is a claim raised by the defendant against a codefendant.

ANSWER: counterclaim, cross-claim 33. In some states a motion for failure to state a claim upon which relief can be granted is referred to as a(n) ____________________.

ANSWER: demurrer 34. ____________________ are written questions submitted to an opposing party that must be answered under oath, while a(n) ____________________ is an oral examination of a witness under oath.

ANSWER: Interrogatories, deposition 35. Records from an opposing party can be obtained via a(n) ______________________________.

ANSWER: request for production of documents 36. If a defendant wants to have the plaintiff examined by an independent physician, he or she can file a(n) ______________________________.

ANSWER: request for medical examination 37. A(n) _________________ must include information such as the name and address of parties with discoverable information, all documents in a party’s possession to support its claims or defenses, computation of damages, and any insurance policies covering the defendant.

ANSWER: disclosure statement 38. A party can file a motion _________________________ when the opposing party requests information that is privileged and can file a motion ____________________ when the opposing party refuses to reveal discoverable information.

ANSWER: for protective order, to compel 39. If a party decides that no material fact is at issue and that the case should be decided as a matter of law on their behalf, they should file a(n) ______________________________.

ANSWER: motion for summary judgment 40. The purpose of a(n) ____________________ is to promote settlement of cases and to make arrangements for the orderly presentation of witnesses and exhibits.

ANSWER: pretrial conference 41. An attorney who wants to resolve an evidentiary issue before trial so that the matter is not brought to the attention of the jury due to unduly prejudicing or confusing them, should file a(n) ___________________.

ANSWER: motion in limine Copyright Cengage Learning. Powered by Cognero.

Page 10

Name:

Class:

Date:

42. A trial before a judge is referred to as a(n) ____________________.

ANSWER: bench trial 43. During the process of ____________________ in which the attorneys or the judge asks potential jurors a series of questions, each party can use _________________________ to remove those whom the attorney alleges are unable to decide impartially, and can use _________________________ to remove those he or she wants excluded but for whom the attorney is unable to allege any bias.

ANSWER: voir dire, challenges for cause, peremptory challenges 44. An attorney gives an overview of his or her case and establishes the theme for the case during _________________________, and tries to persuade the jury to find in his or her client’s behalf during _________________________.

ANSWER: opening statements, closing arguments 45. The purpose of _________________________ is to impeach testimony given by a witness during direct examination.

ANSWER: cross-examination 46. A plaintiff in a tort case has the burden of proving each element of his or her case by a(n) ______________________________. If the defendant feels he or she has failed to meet this burden the defendant can move for a(n) ____________________.

ANSWER: preponderance of the evidence, directed verdict 47. During a process known as _________________________, the judge instructs the jury on the rules of law to be applied after which the jury will be requested to render a(n) ____________________ or ____________________ verdict.

ANSWER: charging the jury, general, special 48. If a party believes that a verdict was reached that was contrary to the evidence and to the law, he or she can move for a(n) _________________________. If the party believes that errors were committed at trial, he or she can move for a(n) ____________________.

ANSWER: judgment notwithstanding the verdict, new trial 49. A(n) __________ involves a higher court reviewing the lower court decision to see if procedural and legal issues were followed but is not a trier of fact.

ANSWER: appellate court, appeals court 50. Once all appeals have been considered and completed, any issues litigated are considered ____________________, in that they cannot be relitigated at a later date.

ANSWER: res judicata Subjective Short Answer 51. What are the four elements of any complaint?

ANSWER: a. A complaint must state that the court has jurisdiction, i.e., the authority to hear the case. b. The complaint must list the parties to the action. c. The complaint must provide a brief summary of each of the elements of the case along with the basic facts that will be used to prove each element.

Copyright Cengage Learning. Powered by Cognero.

Page 11

Name:

Class:

Date:

d. The complaint must specify the relief being sought by the plaintiff.

52. What are two possible motions a defendant might file in response to a complaint?

ANSWER: Motions can be filed alleging, among other things, a lack of jurisdiction over the person or subject matter, improper venue, insufficiency of process, or failure to state a claim upon which relief can be granted.

53. Explain when a party could receive a default judgment.

ANSWER: If the defendant does not respond or answer a complaint, the plaintiff is entitled to a default judgment in which the court would resolve the case in their favor because of the defendant’s lack of opposition.

The court may set aside the default judgment only if the defendant can show it had a good reason for failing to respond to the complaint.

54. Explain the differences between a demurrer and a motion for summary judgment.

ANSWER: A demurrer is a motion that can be filed alleging a failure to state a claim for which relief can be granted. The defendant is asserting that the plaintiff has failed to state a legally necessary element of the cause of action. By granting this motion, the case would be dismissed. A motion for summary judgment is brought after discovery and states that there is no material fact at issue for the jury to decide, that the court should render a decision as a matter of law without a trial.

55. In what circumstances might one opt to use interrogatories?

ANSWER: Interrogatories are a relatively inexpensive way of soliciting basic objective information. Interrogatories are limited in usefulness because they are usually answered by or with the assistance of opposing counsel, whose aim is typically to provide as little information as possible.

56. In what circumstances might one opt to take a deposition?

ANSWER: Because depositions are considerably more time-consuming and more expensive than interrogatories, attorneys carefully select those whom they want to depose. At a deposition, deposing counsel will be able to observe the demeanor and presentation of the witness and assess how a jury might respond to the deponent.

The attorney will also be able to pursue lines of questioning more thoroughly than by using interrogatories because he or she can ask follow-up questions and observe the witnesses’ body language as they respond to the questions. A court reporter, present during the deposition, prepares a transcript of everything that is said.

The transcript can then be introduced at trial. For that reason, an attorney may opt to depose a witness whose testimony he or she wants to use at trial if the attorney believes that witness will not appear for the trial.

Counsel can also use the witness’s statements made during the deposition to impeach (discredit) the witness's testimony at trial.

57. What is the difference between a challenge for cause and a peremptory challenge?

ANSWER: A party who wants to excuse a particular juror and can show that the juror has already formed a judgment as to how the case should be decided or for some reason is unable to decide the case impartially, may use a challenge for cause. If the attorney believes there is a prejudice or bias, they can use this type of challenge.

The party who wants to dismiss a particular juror but cannot allege bias may remove the juror using a peremptory challenge. No reason need be given for a peremptory challenge. These types of challenges are limited based on the state.

58. What is the purpose of filing a motion for summary judgment?

ANSWER: During the discovery process a party may evaluate the dispute and determine that there is no material fact at Copyright Cengage Learning. Powered by Cognero.

Page 12

Name:

Class:

Date:

issue for the jury to decide and that the court should render a decision as a matter of law without having to go to trial. In this event the party will file a motion for summary judgment, requesting that the court enter a judgment on its behalf, thus dispensing with the need for a trial (FRCP 56). A party can also request a partial summary judgment, which, in effect, eliminates particular issues.

59. What is the purpose of making a motion for a directed verdict?

ANSWER: Defendants move for a directed verdict, arguing that the plaintiff failed to meet the burden of proof on all the elements of her or his case. Such motions, though frequently made, are commonly denied, but if a motion for a directed verdict is granted, the case is in essence dismissed.

60. What is the difference between a general verdict and a special verdict?

ANSWER: A general verdict would require the jury to decide if the defendant was liable for the plaintiff’s injuries and to determine what damages should be awarded. If a special verdict were requested, the jury would be required to answer special interrogatories, and the judge would have to determine the prevailing party after reviewing the jury’s answers.

61. Explain what charging the jury consists of and why it is important.

ANSWER: During charging the jury, the judge will instruct the jury on the rules of law to be applied.

Some states use standard jury instructions. Others allow attorneys to draft proposed instructions for the judge’s consideration. In a conference outside of the presence of the jury, the attorney can argue which instructions should be adopted. Much attention is given to the adoption of jury instructions, and both sides of counsel are given an opportunity to object to any instructions the judge gives or fails to give. Jury instructions are very important because objections to these instructions are typically the fundamental reasons of an appeal.

Chapter 03-Intentional Torts True / False 1. To be held liable for an intentional tort, the defendant must be shown to have intended to harm the plaintiff. a. True b. False ANSWER: False 2. If a defendant knows with reasonable certainty that results will occur from their action, they will be liable for any consequences. a. True b. False ANSWER: True 3. Some intentional torts are crimes as well. a. True b. False ANSWER: True 4. To be held liable for battery, the defendant must make physical contact with the body of the plaintiff.

Copyright Cengage Learning. Powered by Cognero.

Page 13

Name:

Class:

Date:

a. True b. False ANSWER: True 5. A defendant’s intent toward one person can be transferred to the person who is actually injured as a result of their conduct. a. True b. False ANSWER: True 6. If a defendant intends to commit one type of tort but ends up committing a different one, they cannot be held liable for the different one. a. True b. False ANSWER: False 7. A plaintiff must suffer pain or bodily harm to recover for battery. a. True b. False ANSWER: False 8. A plaintiff must be aware of a battery but need not have any awareness of an assault in order to recover. a. True b. False ANSWER: False 9. A defendant who commits a battery is liable only for those damages that are foreseeable. a. True b. False ANSWER: False 10. If a defendant steals a cell phone from someone’s hand and doesn’t touch the person, they can be liable for battery. a. True b. False ANSWER: True 11. A defendant who throws a frisbee at someone and the frisbee touches them can be liable for battery. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 14

Name:

Class:

Date:

12. A defendant can be liable for a tort of battery even if the plaintiff does not know about the battery until later. a. True b. False ANSWER: True 13. A defendant will be liable for damages relating to a battery, but only to the extent they are foreseeable. a. True b. False ANSWER: False 14. A defendant can commit assault by intending to commit a battery, a. True b. False ANSWER: True 15. The transferred intent doctrine is not applicable to the tort of assault a. True b. False ANSWER: False

16. A plaintiff need not be fearful that they will be harmed to recover for assault. a. True b. False ANSWER: True 17. A plaintiff must believe that the defendant had the ability to carry out a threatened contact to recover for assault. a. True b. False ANSWER: True 18. Threats of future harm are sufficient to constitute an assault. a. True b. False ANSWER: False 19. A person can recover for assault if their apprehension is that someone else will be touched and not themself. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 15

Name:

Class:

Date:

20. Words alone can never constitute an assault. a. True b. False ANSWER: False 21. Confinement by means of physical force is required to recover for false imprisonment. a. True b. False ANSWER: False 22. A police officer can be held liable for false imprisonment if the police officer unlawfully arrests someone even if they do so in good faith. a. True b. False ANSWER: False 23. A merchant has the right to detain a person suspected of shoplifting wherever they wish. a. True b. False ANSWER: False 24. The tort of infliction of mental distress can be committed either intentionally or recklessly. a. True b. False ANSWER: True 25. To be held liable for the tort of infliction of mental distress, the defendant’s conduct must be considered intolerable in any civilized society. a. True b. False ANSWER: True 26. The peculiar characteristics of the plaintiff are never taken into consideration when evaluating the defendant’s conduct for purposes of liability for infliction of mental distress. a. True b. False ANSWER: False 27. The transferred intent doctrine is generally applicable in cases of false imprisonment and infliction of mental distress. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 16

Name:

Class:

Date:

28. Some courts require a plaintiff to suffer physical harm before being allowed to recover for infliction of mental distress. a. True b. False ANSWER: True 29. Common carriers, innkeepers, and public utilities are held to a lower standard of care than the rest of the populace in infliction of mental distress cases. a. True b. False ANSWER: False 30. A defendant is not liable for trespass if their contact with the defendant’s land is the result of a reasonable mistake. a. True b. False ANSWER: False 31. A defendant must intend harm to a person’s property in order to be liable for a trespass to land. a. True b. False ANSWER: False 32. An indirect invasion of land is sufficient to prove trespass to land, but an invasion of the airspace above land is never considered a trespass. a. True b. False ANSWER: False 33. A defendant who commits a trespass to land is liable only for those damages that are foreseeable. a. True b. False ANSWER: False 34. The length of deprivation is generally irrelevant for purposes of recovering for trespass to chattels. a. True b. False ANSWER: True 35. Plaintiffs who sue for trespass to land or trespass to chattels must prove actual harm. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 17

Name:

Class:

Date:

36. Only owners of property can recover for trespass to chattels or conversion. a. True b. False ANSWER: False 37. For purposes of trespass to chattels, title is deemed to have transferred from the plaintiff to the defendant. a. True b. False ANSWER: False 38. A conversion can be committed by transferring chattel to someone not entitled to such chattel. a. True b. False ANSWER: True 39. Conversion suits are never allowed for intangible rights, such as stock certificates and promissory notes. a. True b. False ANSWER: False 40. Mistake is generally not a defense to intentional torts. a. True b. False ANSWER: True 41. Consent can be inferred from custom or from a person’s conduct. a. True b. False ANSWER: True 42. Consent cannot be given if the plaintiff is mistaken about some material fact. a. True b. False ANSWER: True 43. Consent may be implied in certain emergency situations. a. True b. False ANSWER: True 44. A defendant will be liable for the intentional tort if they invade the plaintiff’s interest in a way that substantially deviates from that consented to. a. True Copyright Cengage Learning. Powered by Cognero.

Page 18

Name:

Class:

Date:

b. False ANSWER: True 45. A defendant must actually be harmed to claim self-defense. a. True b. False ANSWER: False 46. A defendant can use force only in response to imminent threats. a. True b. False ANSWER: True 47. People may not use force to defend their homes unless the person threatening them is inside the home. a. True b. False ANSWER: False 48. One must retreat before using deadly force inside one’s home. a. True b. False ANSWER: False 49. Deadly force can be used to prevent certain types of felonies. a. True b. False ANSWER: True 50. Reasonable force may be used to defend others including strangers. a. True b. False ANSWER: True

51. A property owner may never use deadly force to protect property. a. True b. False ANSWER: False

52. A property owner must be in ―fresh pursuit‖ to use force to regain possession of chattels. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 19

Name:

Class:

Date:

ANSWER: True 53. Any mistake made on the part of the property owner will cause the property owner to lose the right to use force to regain possession of chattels. a. True b. False ANSWER: True

54. The majority of American courts permit landlords to use force to evict their tenants. a. True b. False ANSWER: False 55. If a defendant claims the privilege of public necessity, the defendant does not have to pay for damages caused to the plaintiff if successful. a. True b. False ANSWER: True 56. In a private necessity case, a defendant can only be liable to any actual damages caused to the plaintiff’s property. a. True b. False ANSWER: True 57. If the defendant causes no substantial harm to the plaintiff’s property, the privilege of private necessity is a complete defense. a. True b. False ANSWER: True Completion 58. If Bob threatens to have his dog attack Sharon, he commits the tort of ____________________. According to the _________________________ doctrine he will be liable for ____________________ if the dog misunderstands and attacks Sharon instead. If he fires a gun and a bullet goes across Sharon’s land, he commits the tort of ____________________, but if the bullet hits the window in Sharon’s barn, he commits the tort of _________________________. If the bullet hits the hay in Sharon’s barn causing it to catch fire and burn down the barn, he commits the tort of ____________________.

ANSWER: assault, transferred intent, battery, trespass to land, trespass to chattels, conversion 59. If Roberta arrests Frank without probable cause, Frank could sue Roberta for _________________________. If Frank wanted to sue her for infliction of mental distress, he would have to prove her conduct was _________________________ and in some states he would have to prove that he suffered ____________________.

ANSWER: false imprisonment, extreme and outrageous, physical harm Copyright Cengage Learning. Powered by Cognero.

Page 20

Name:

Class:

Date:

60. Consent cannot be used as a defense unless the plaintiff had the ____________________ to give consent and gave the consent ____________________.

ANSWER: capacity, voluntarily 61. A defendant can use deadly force to defend their home when they believe _____________________________________________ and that _____________________________________________.

ANSWER: the use of force is immediately necessary to prevent death or serious bodily harm, no lesser degree of force was sufficient to prevent the harm 62. Under the majority position, a defendant who is mistaken about another’s need for their assistance will not be liable for using force if _______________________________________________________.

ANSWER: the person he or she assisted reasonably believed force was necessary 63. A property owner who uses a mechanical device for protection will not be liable if _________________________________________________________________. If the owner uses a non-deadly mechanical device, the owner must first ____________________.

ANSWER: they would have been justified in using that degree of force if the owner had been present, post a warning 64. If an individual uses force to regain possession of chattels, they must be able to prove that ______________________________ and that _________________________________________________________________.

ANSWER: reasonable force was used, they were in fresh pursuit or the property was wrongfully taken 65. If someone commits a tort to protect a substantial number of people, they can claim ____________________ as a defense and if they do so to protect their own property, they may be able to claim ____________________ as a defense.

The significance of the difference between these two defenses is that __________________________________________________________________________________________________ __.

ANSWER: public nuisance, private nuisance, the defendant is not required to compensate the plaintiff for damages from a public nuisance but is required to do so from a private nuisance Subjective Short Answer 66. Give an example of an application of the transferred intent doctrine. What torts allow this doctrine?

ANSWER: Under the transferred-intent doctrine, the defendant’s intent toward one person is transferred to the person who is actually injured as a result of the defendant’s conduct. Therefore, in such cases the tortfeasor is deemed to have committed an intentional tort. This same rule is applicable if the tortfeasor intends to commit one kind of tort and in fact commits another. If the tortfeasor uses his dog to terrorize A (an assault), and the dog escapes and bites B (a battery), the tortfeasor will be liable for the battery even though he intended an assault. Assault and battery allow transferred intent. False imprisonment allows transferred intent if a defendant intends to confine one person and actually confines another as well.

67. What is the difference between an assault and a battery?

ANSWER: Battery is defined as the intentional infliction of a harmful or offensive contact upon a person.

Assault is defined as the intentional causing of an apprehension of harmful or offensive contact.

Any harmful contact, even if unintended, can constitute a battery. Any threat of imminent harm can Copyright Cengage Learning. Powered by Cognero.

Page 21

Name:

Class:

Date:

constitute an assault.

68. In what way does the issue of false imprisonment arise in cases of suspected shoplifting?

ANSWER: The tort of false imprisonment is committed when a person intentionally confines another. Originally, confinement was restricted to actual incarceration, but today confinement includes restraint in an open street or in a moving vehicle. The restraint must be more than a mere obstruction of the plaintiff’s right to go wherever they please. Blocking the plaintiff’s path in one direction only does not constitute confinement as long as alternative routes are available. The doctrine of transferred intent is applicable to this tort. If the defendant, in confining one person, inadvertently confines another as well, the defendant will be liable to both for false imprisonment.

In most states today a merchant who reasonably believes that a customer has stolen property has a right to detain the suspected individual for a short period of time for the purpose of investigation. The right to detain is very restricted, however, and will be lost if the detention is unreasonably long, if the plaintiff is bullied or insulted, if the plaintiff is publicly accused of shoplifting, or if the detention is used to coerce payment or the signing of a confession. In most states the right to detain is limited to detention on the defendant’s premises and is lost when the plaintiff leaves the premises. The pivotal question is whether the merchant had reasonable grounds for the detention.

69. What are two elements of infliction of mental distress?

ANSWER: This tort can be committed either intentionally or recklessly. If committed intentionally, the tortfeasor must want to bring about a particular consequence or must know with substantial certainty that a specific result is likely to occur. If the tort is committed recklessly, the defendant must act in deliberate disregard of the emotional distress that the defendant knows they are very likely to cause the plaintiff. Such recklessness rises above negligence.

70. What is the difference between trespass to chattels and conversion?

ANSWER: Trespass to chattels is committed by the intentional interference with the plaintiff’s use or possession of chattel (personal property). Chattel is property that is visible, tangible, and movable.

If the defendant’s interference with the plaintiff’s property is so substantial that justice demands that the defendant pay the plaintiff the full value of the property, the defendant has committed the tort of conversion.

As with trespass to land and trespass to chattels, no intent to harm the plaintiff’s property or possessory rights is required. An innocent mistake by the defendant is sufficient. The plaintiff must show only that the defendant intended to interfere with the plaintiff’s possessory rights. As with trespass to chattels, the plaintiff in a conversion action need not be the owner but can be the person in possession of the property at the time of the conversion.

71. What intent is required for the tort of trespass to land?

ANSWER: The defendant’s only intent must be to make physical contact with the plaintiff’s land. The defendant need not intend any harm to the plaintiff’s property nor even be aware that any harm might occur. A defendant is still liable for trespass even if their contact with the plaintiff’s land is the result of a reasonable mistake. An intentional trespass is committed, for example, if a defendant walks on another’s land thinking it to be their own or believing they are entitled to enter the land. Trespass can also be committed if a defendant has permission to enter someone’s land and refuses to leave.

72. What are two factors the courts consider in determining whether an act constitutes conversion?

Copyright Cengage Learning. Powered by Cognero.

Page 22

Name:

Class:

Date:

ANSWER: a. the extent and duration of the defendant’s exercise of control over the property b. the extent and duration of the resulting interference with the plaintiff’s right to control c. the defendant’s intent to assert a right inconsistent with the plaintiff’s right of control d. the defendant’s good faith e. the harm done to the chattel f. the inconvenience and expense caused to the plaintiff 73. Name two requirements that must be met in order for consent to be a defense.

ANSWER: If a plaintiff who has the capacity to consent to interference with their person or property voluntarily does so, either explicitly or implicitly, the defendant will not be liable for such interference. The consent may be implied from the plaintiff’s conduct or from any customs surrounding such conduct. The standard is would a reasonable person in the defendant’s shoes have believed that the plaintiff had consented to an invasion of their interest?

74. How much force may an individual use to defend themself?

ANSWER: Defendant may use only that force that is reasonably necessary to protect themselves against a threatened harm. Defendant must believe they have no reasonable alternative to the use of force to protect themselves form impending danger.

75. Is a person required to retreat before using deadly force to defend oneself in the home?

ANSWER: All a person needs to show is that they reasonably believed they were in imminent danger of death or serious bodily harm and that no lesser degree of force was sufficient to prevent the harm. The courts are split, however, on whether a defendant has a duty to retreat. Some courts, giving homage to individual honor and dignity, allow a defendant to use deadly force even if they can safely retreat. Other courts, attaching more importance to the sanctity of human life, require a defendant to retreat if they can do so safely. Even the latter courts, however, do not require someone who is attacked in their home to retreat.

76. In what circumstances might a defendant be held liable for using force to defend another, even if the amount of force used is reasonable?

ANSWER: If the person being protected is not ―privileged‖ to use self-defense on their behalf.

77. What is the general rule regarding the use of mechanical devices to defend property?

ANSWER: As a general rule, a property owner is entitled to use such a device only if they could use a similar degree of force if the property owner were present when the intruder entered. Because such devices are usually considered deadly force, they may be used only to prevent death or serious bodily harm or the commission of certain felonies. A homeowner will be liable, therefore, if a trespasser is seriously injured by an electric fence erected by the homeowner. Because the owner would not be justified in using deadly force against the trespasser if the owner confronted the trespasser in person, they would not be justified in using a mechanical device that constituted deadly force.

78. What are two things an individual must show if they claim the right to use force to regain possession of chattels?

ANSWER: Any two of the following: First, under limited circumstances, a property owner may use force to regain possession of chattels taken from the property owner by someone else. To claim this defense, the owner must first show that they used reasonable force in securing the chattels. Deadly force is never allowable unless justified under the doctrine of Copyright Cengage Learning. Powered by Cognero.

Page 23

Name:

Class:

Date:

self-defense. Second, the property must have been wrongfully taken. Third, the property owner must be in ―fresh pursuit.‖ Mistake is no defense to using right to force.

79. What is the difference in consequences to a defendant in claiming private necessity as opposed to public necessity?

ANSWER: The conduct of a defendant protecting only their own interests or those of a few private citizens falls into the realm of private necessity. By contrast, if the class of persons being protected is the public as a whole or a substantial number of persons, the privilege is referred to as public necessity. The only reason for distinguishing between these two kinds of necessities is that the defendant does not have to pay for damages caused in cases of public necessity but is required to do so in cases involving private necessity.

Chapter 04-Negligence: Duty True / False 1. A possessor owes a duty to warn known trespassers of a hazard they know is in dangerous proximity to the trespassers if they believe the trespassers will not discover the hazard or understand its dangerousness. a. True b. False ANSWER: True 2. The analysis of duty for a public entity is very different from the analysis conducted for a private individual. a. True b. False ANSWER: False 3. The common law focused on protecting the rights of landowners as opposed to possessors of land. a. True b. False ANSWER: False 4. Some courts have abandoned the common law classifications when determining the duty owed by a landowner. a. True b. False ANSWER: True 5. Under no conditions does a possessor of land owe any duty of care to a trespasser. a. True b. False ANSWER: False 6. Landowners are required to essentially make their premises childproof. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 24

Name:

Class:

Date:

7. A defendant is not liable for injuries suffered by a person who attempts to rescue the individual imperiled by the defendant. a. True b. False ANSWER: False 8. The status of a trespasser whose presence is known by the possessor is elevated to that of a licensee. a. True b. False ANSWER: True 9. A landowner has a duty to inspect their premises for hidden dangers and protect a licensee from those dangers. a. True b. False ANSWER: False 10. To be classified as an invitee, an individual must be engaging in business at the time of their injury. a. True b. False ANSWER: False 11. A licensee is elevated to an invitee by performing incidental services for their host. a. True b. False ANSWER: False 12. When an invitee’s reason for being on the premises becomes social rather than business, they become a licensee. a. True b. False ANSWER: True 13. The definition of reasonable care expected of a landowner/possessor depends on how the premises are used, but in no case is a landowner/possessor held responsible for the actions of third parties. a. True b. False ANSWER: False 14. A possessor of land is more likely to be found liable for injuries caused to those outside of their premises if the cause of the injury stems from a natural condition rather than an artificial condition. a. True b. False ANSWER: False 15. According to the common law a defendant had no obligation to save someone who was drowning if no special relationship existed between them, even if the defendant could do so without bringing harm upon themself. a. True Copyright Cengage Learning. Powered by Cognero.

Page 25

Name:

Class:

Date:

b. False ANSWER: True 16. A university owes no duty of care to its students to protect them from harm. a. True b. False ANSWER: False 17. A tavern owner who sells liquor to an obviously intoxicated individual may be liable for injuries inflicted by that individual. a. True b. False ANSWER: True 18. An individual is under no obligation to continue administering care once he or she has come to the rescue of a person in need. a. True b. False ANSWER: False 19. A tenant is generally not liable for injuries that occur in the stairways or corridors of a building in which they are a tenant. a. True b. False ANSWER: True 20. If a landlord has no contractual obligation to make repairs, the landlord has no obligation to finish whatever repairs they begin in a timely manner. a. True b. False ANSWER: False 21. A seller of land is absolutely released from all liability once they transfer possession of property to the buyer. a. True b. False ANSWER: False 22. No duty of care is owed to an unborn child. a. True b. False ANSWER: False 23. An employer is vicariously liable for the acts of its employees even if an employee is acting on their behalf and not the employer’s when the employee commits a tort. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 26

Name:

Class:

Date:

ANSWER: False 24. The rationale underlying the doctrine of respondeat superior is that the expense resulting from accidents occurring on the job should be borne by employers and should be considered part of the cost of doing business. a. True b. False ANSWER: True 25. A parent can be held liable for damages if they lend their car to their child who is then involved in an accident. a. True b. False ANSWER: True Completion 26. In general, a defendant has a duty to act ____________________towards anyone coming onto their land.

ANSWER: reasonably 27. In terms of determining the duty owed to one who enters another’s land, a social guest is considered a(n) ____________________, while a person having a business purpose is considered a(n) ____________________.

ANSWER: licensee, invitee 28. Two of the four exceptions to the no-duty rule regarding trespassers are ______________________________ and the _________________________.

ANSWER: the attractive nuisance doctrine, rescue doctrine 29. A possessor of land has a duty to warn a(n) ____________________ of any known dangerous conditions and a duty to inspect the premises for hidden dangers in the case of a(n) ____________________.

ANSWER: licensee, invitee 30. The concept of respondeat superior involves a special relationship between a(n) ____________________ and a(n) ____________________.

ANSWER: employer, employee 31. According to the doctrine of _________________________, a defendant is liable for the acts of another even though the defendant is not at fault.

ANSWER: vicarious liability 32. The ____________________ doctrine holds the owner of a car liable for the torts committed by those members of the immediate family who drive the car with the owner’s permission.

ANSWER: family purpose 33. The two types of invitees are ____________________ and ____________________ invitees.

ANSWER: business, public 34. A(n) ____________________ case involves a question of a store owner’s liability when a customer is injured after falling in the store due to a dangerous condition.

Copyright Cengage Learning. Powered by Cognero.

Page 27

Name:

Class:

Date:

ANSWER: slip and fall 35. A statute that absolves people of liability for assisting another as long as reasonable care is used in providing that assistance is referred to as the ____________________ statute.

ANSWER: Good Samaritan 36. Under the _________________________ doctrine, a defendant who owes the plaintiff no duty of protection is still liable if they begin to protect the plaintiff and does so negligently.

ANSWER: voluntary undertaking Subjective Short Answer 37. What is the duty of care owed to each of the following? a. Trespasser b. Licensee c. Invitee d. One outside the possessor’s premises ANSWER: a. Trespasser—No duty to make land safe. Must warn of known dangers if possessor is aware of trespasser b. Licensee—Duty to warn of dangerous conditions c. Invitee—Duty to inspect for hidden dangers d. One outside the possessor’s premises—Attractive nuisance doctrine 38. Name two ways in which an invitee can lose their status.

ANSWER: Any two of the following: a. An invitee may become a licensee or trespasser if they gos to parts of the premises that extend beyond the invitee’s invitation. b. An invitee also loses their status if the invitee stays on the premises for longer than is reasonably necessary to conduct business. Once the invitee’s purpose becomes social rather than business the invitee becomes a licensee. c. An invitee may lose their status if they enter property purely for their own benefit.

39. Name three things a plaintiff must argue if they wish to claim injury by an attractive nuisance.

ANSWER: Any three of the following: a. The possessor has reason to know that the condition is on a place on the land where children are likely to trespass. b. The possessor must have reason to know of the condition and to know that it poses an unreasonable risk of serious injury or death to trespassing children. c. Because 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. d. The benefit to the possessor in maintaining the condition in its dangerous form must be slight in comparison to the risk posed to the children. e. The possessor must fail to use reasonable care to eliminate the danger or to protect the children.

40. Describe the rescue doctrine.

ANSWER: Under the rescue doctrine, anyone who negligently causes harm to a person or property may be liable to a person who is injured in an effort to rescue the imperiled person or property. The rationale is that the rescuer would not have been injured were it not for the negligence of the tortfeasor. This doctrine prevents a plaintiff from being found contributorily negligent for voluntarily placing themself in a dangerous situation in order to Copyright Cengage Learning. Powered by Cognero.

Page 28

Name:

Class:

Date:

save another. The doctrine is only warranted when the threatened danger is both imminent and real and requires immediate action if the victim is to be saved.

41. Give an example of a special relationship that creates a duty of care that would not exist if the parties involved had no relationship.

ANSWER: Parent Child Husband Wife Teacher Pupil Jailor Prisoner Common Carrier Passenger Employer Employee University Student Possessor of Land Licensee/Invitee Innkeeper Guest Rescuer Victim 42. What potential problems does Tarasoff create for professionals?

ANSWER: The court held that the defendant psychotherapist had a duty to warn the plaintiff of the patient’s intentions if a reasonable person in those circumstances would have done so. Admittedly, the doctor-patient privilege was inapplicable in this case because disclosure was necessary to prevent threatened danger. Nevertheless, the Tarasoff holding blurs the line between professionals’ obligation to protect others and their need to promote open communication between themselves and their clients.

43. Name two duties owed by a landlord to a tenant.

ANSWER: Any two of the following: a. Liable for dangers they know or should know about b. Duty to inspect for dangers when landlord knows property is held open to public c. Must use reasonable care if they contract with tenant to keep premises in good repair d. If they begin repairs, they must perform them reasonably e. Some cases they have a duty to take security precautions to protect tenants from criminal activity

44. What duty of care does a seller of land owe to a buyer?

ANSWER: If the seller fails to disclose a dangerous condition of which the seller is or should be aware and which they should realize that the buyer will not discover, the seller will be liable to anyone injured as a result of that condition. If the buyer has a reasonable opportunity to find and correct the defect, even if the buyer does not in fact discover it, the seller’s liability ceases.

45. In what way is the concept of vicarious liability demonstrated in the respondeat superior doctrine?

ANSWER: According to the principle of vicarious liability a defendant may be liable for the tortious acts of another even though they are not at fault. An employer is vicariously liable for the tortious acts of their employees under the doctrine of respondeat superior, which means, literally, ―Let the superior respond.‖ Copyright Cengage Learning. Powered by Cognero.

Page 29

Name:

Class:

Date:

46. What is one argument a tenant might make to support their contention that a landlord has an obligation to provide tenants some security against criminal attack by third parties?

ANSWER: See Hemmings v. Pellam Wood Ltd. Liability Ltd. We believe that, to properly perform the security measures provided, the landlord has a duty to maintain and regularly inspect the devices implemented to deter criminal activity. That is, if the security devices that the landlord provides require regular maintenance or inspection for them to properly function, the landlord must do what is reasonable to maintain or inspect the devices. Once a landlord takes reasonable security measures to eliminate conditions that contribute to criminal activity on the premises, all of its duties with respect to those measures have not been fulfilled necessarily. Rather, a landlord has a continuing obligation to properly carry out the security measures it provides.

47. What duty of care is owed by landowners in jurisdictions that no longer recognize the common law distinctions of trespasser, licensee, and invitee?

ANSWER: In those states that have rejected the distinctions between invitee, licensee, and trespasser, they use a reasonable person standard of liability.

Chapter 05-Negligence: Breach of Duty True / False 1. The Restatement uses an entirely different approach to assessing the reasonableness of defendants’ conduct than does Learned Hand formula. a. True b. False ANSWER: False 2. The reasonable person standard looks at the defendant’s behavior on the day in question, not their routine behavior. a. True b. False ANSWER: True 3. The courts typically use a subjective standard in determining whether a defendant acted reasonably. a. True b. False ANSWER: False 4. Courts look to social utility of the defendant’s conduct when applying the Learned Hand formula. a. True b. False ANSWER: True 5. Intoxicated individuals are held to a standard of care of other intoxicated persons. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 30

Name:

Class:

Date:

6. The physical characteristics of a defendant are sometimes taken into consideration in determining the reasonableness of behavior. a. True b. False ANSWER: True 7. Being emotionally unstable or of substandard intelligence is not weighed when looking at reasonableness of behavior. a. True b. False ANSWER: False 8. A child engaging in an adult activity will be held to an adult standard. a. True b. False ANSWER: True 9. Defendants responding to emergency situations are not held to the same standard of care as those acting in less stressful situations. a. True b. False ANSWER: True 10. Adherence to custom within an industry is conclusive evidence of reasonable behavior. a. True b. False ANSWER: False 11. Novices in a profession are held to a lower standard of care than their more experienced counterparts. a. True b. False ANSWER: False 12. An attorney who is a certified criminal law specialist is held to a higher standard of care when practicing criminal law than other attorneys who do not specialize in that area. a. True b. False ANSWER: True 13. A defendant who violates a statute and, as a result, injures a plaintiff is automatically negligent per se. a. True b. False ANSWER: False 14. Only the violation of civil statute can result in a defendant being found negligent per se. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 31

Name:

Class:

Date:

15. A plaintiff must prove that their injury was the type of injury the statute was designed to protect against to recover under negligence per se. a. True b. False ANSWER: True 16. The only way a defendant can rebut a claim of negligence per se is by claiming the plaintiff was contributorily negligent or assumed the risk. a. True b. False ANSWER: False 17. A plaintiff who was contributorily negligent will most likely not be able to rely on the doctrine of res ipsa loquitur. a. True b. False ANSWER: True 18. The doctrine of res ipsa loquitur does not apply if it is just as likely that someone other than the defendant caused the plaintiff ’s injury. a. True b. False ANSWER: True 19. Ignorance of the law is an excuse under the reasonable person standard. a. True b. False ANSWER: False Completion 20. The Learned Hand formula is used to ________________________________________.

ANSWER: assess the reasonableness of a defendant’s conduct 21. The P in the Learned Hand formula refers to the ______________________________, the L refers to the ____________________, and the B refers to the ___________________________________.

ANSWER: probability that harm will occur, gravity of harm, burden of precautions taken by the defendant 22. If a(n) ____________________ standard is used, the defendant’s behavior is compared to that of a reasonable person, but if a(n) ____________________ standard is used, the defendant is asked whether they acted in a reasonable manner.

ANSWER: objective, subjective 23. A child is held to the standard of care of children of similar ____________________, ____________________, and ____________________.

ANSWER: age, intelligence, experience 24. Professionals are held to a(n) ____________________ standard of care than laypersons.

Copyright Cengage Learning. Powered by Cognero.

Page 32

Name:

Class:

Date:

ANSWER: higher

25. A specialist in a field is held to a higher standard of care than professionals in that field. a. True b. False ANSWER: True 26. A defendant who violates an ordinance and injures someone as a result of that violation may be considered ____________________.

ANSWER: negligent per se 27. _________________________ statutes limit drivers’ duty of care.

ANSWER: Automobile guest 28. A driver in a vehicle can be liable to their guests for injury under circumstances of _________________.

ANSWER: extreme misconduct 29. A plaintiff can use the doctrine of _________________________ to create the inference of negligence without providing direct evidence.

ANSWER: res ipsa loquitur 30. In a res ipsa loquitur case, the plaintiff must show that the instrument that caused their injury was under the ______________ of the defendant.

ANSWER: exclusive control Subjective Short Answer 31. Use the Learned Hand formula to assess the reasonableness of a manufacturer who fails to supply aspirin in tamperproof containers.

ANSWER: Answers may vary.

32. Name three factors that are taken into consideration when determining the reasonableness of a defendant’s conduct.

ANSWER: a. “the social value which the law attaches to the interest which is to be advanced or protected by the conduct” b. “the extent of the chance that this interest will be advanced or protected by the particular course of conduct” c. “the extent of the chance that such interest can be adequately advanced or protected by another less dangerous course of conduct”

33. What must a plaintiff prove if they want to argue that the defendant who violated a statute was negligent per se?

ANSWER: This doctrine, as applied by the majority of the courts, requires that (1) the violated statute be applicable to the facts of the case, and (2) a causal link between the act constituting a violation of the statute and the plaintiff’s injury be established. In a few courts, however, a statutory violation is considered merely evidence of negligence and may be outweighed by other evidence of due care.

34. What could a defendant who was alleged to be negligent per se argue in their defense?

ANSWER: a. ―the violation is reasonable because of the actor’s incapacity‖ b. ―they neither know nor should know of the occasion for compliance‖ c. ―they are unable after reasonable diligence or care to comply‖ d. ―they are confronted by an emergency not due to their own misconduct‖ e. ―compliance would involve a greater risk of harm to the actor or to others‖ Copyright Cengage Learning. Powered by Cognero.

Page 33

Name:

Class:

Date:

35. What three things would a plaintiff who wanted to use the doctrine of res ipsa loquitur have to prove?

ANSWER: a. Event that resulted in the plaintiff’s injuries does not usually happen except as a result of negligence. b. Instrument that caused the plaintiff’s injury was under the defendant’s exclusive control. c. The plaintiff did not cause their own injuries. d. Defendant is in a better position to explain the events causing the plaintiff’s injuries than is the plaintiff.* *Not all courts require proof of this element.

36. Why might a plaintiff want to resort to the doctrine of res ipsa loquitur?

ANSWER: In a res ipsa loquitur case the 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 he or she did not act negligently.

37. To what standard of care are the following persons held? a. A blind person b. An insane person c. Someone of substandard intelligence ANSWER: a. A blind person is held to the standard of a reasonable blind person. b. Even insane people are generally held to a reasonable-person standard, although some courts are beginning to deviate from that standard when the insane person is unable to understand or avoid the danger. c. Special allowances are not made for defendants who are emotionally unstable or of substandard intelligence.

38. How does contributory negligence play into negligence cases?

ANSWER: A plaintiff must provide evidence showing that they acted properly. If they were at all contributorily negligent, they will most likely not be able to use negligence for res ipsa loquitur. Their portion of negligence precludes the idea of res ipsa loquitur which is ―the thing speaks for itself‖. The defendant would not be in exclusive control if the plaintiff had some contribution to the negligence or the injury.

39. What is the rationale underlying the automobile guest statutes?

ANSWER: The rationale underlying these statutes was twofold. First, at the time these statutes were enacted, automobile liability insurance was not widely available, so drivers who were successfully sued by their guests had to bear the cost themselves. Many legislatures thought that such ―ingratitude‖ should be discouraged. Second, when insurance was available, collusion between driver and guest (who were most likely friends or relatives) was feared. In other words, some thought that the owner (defendant) of the vehicle might concede negligence to assist the guest (plaintiff) in recovering damages.

Chapter 06-Negligence: Causation True / False 1. The question of actual cause is a question of foreseeability. a. True b. False ANSWER: False 2. The substantial factor test is an alternative to the but-for test for concurrent causes.

Copyright Cengage Learning. Powered by Cognero.

Page 34

Name:

Class:

Date:

a. True b. False ANSWER: True 3. The plaintiff bears the burden of proving actual cause. a. True b. False ANSWER: True 4. A plaintiff who is unable to prove which of several defendants caused the plaintiff’s injuries will not be able to prove negligence. a. True b. False ANSWER: False 5. Toxic tort cases usually use the less stringent substantial-factor test in concurrent-cause cases. a. True b. False ANSWER: True 6. The risk-contribution-theory makes it easier for plaintiffs to recover in cases involving mass torts with inherently toxic products. a. True b. False ANSWER: True 7. Under the theory of alternate liability, the burden of proof shifts to the defendant. a. True b. False ANSWER: True 8. The ―market-share liability‖ theory is particularly useful to plaintiffs in product liability cases. a. True b. False ANSWER: True 9. The concerted action theory is a theory plaintiffs often resort to when there are multiple defendants and causation is difficult to prove and requires a tacit agreement. a. True b. False ANSWER: True 10. Proximate cause is often referred to as legal cause. a. True Copyright Cengage Learning. Powered by Cognero.

Page 35

Name:

Class:

Date:

b. False ANSWER: True 11. According to the Cardozo rule, a wrong should be defined in terms of the natural and probable. a. True b. False ANSWER: True 12. Judge Andrews’s position regarding proximate cause most closely parallels the direct causation rule. a. True b. False ANSWER: True 13. The direct causation rule takes into account the extent of the harm, the foreseeability of the result, the manner in which the injury occurred, and the timing of the cause and effect. a. True b. False ANSWER: False 14. Some feel that the rule regarding proximate cause that evolved from Palsgraf could result in limitless liability. a. True b. False ANSWER: False 15. An exception to the Cardozo rule is the ―eggshell skull‖ rule. a. True b. False ANSWER: True 16. Proximate cause is a policy question. a. True b. False ANSWER: True 17. A case where a plaintiff dies as a result of a minor altercation due to their rare blood disease, would hold the defendant liable for the death under the eggshell skull rule. a. True b. False ANSWER: True 18. A defendant is not liable if the harm suffered by the plaintiff occurs in an unusual manner even if the harm is of the general type that made the defendant’s conduct negligent. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 36

Name:

Class:

Date:

ANSWER: False 19. A defendant is never liable for harm that occurs to an unforeseeable plaintiff. a. True b. False ANSWER: False 20. As long as a plaintiff is a member of a class to which there is general foreseeability of harm, a defendant will be liable. a. True b. False ANSWER: True 21. Intervening causes relieve defendants of liability if they are superseding. a. True b. False ANSWER: True 22. The foreseeable negligence of others is not considered a superseding cause. a. True b. False ANSWER: True 23. A third person’s criminal conduct is always considered a superseding cause if such conduct results in injury to the plaintiff. a. True b. False ANSWER: False

24. ertain acts of God such as lightning or earthquakes can be superseding causes even though not foreseeable. a. True b. False ANSWER: True 25. If an unforeseeable intervening cause leads to the plaintiff’s injury, the defendant will automatically be relieved of liability. a. True b. False ANSWER: False 26. The issue of proximate cause is a question of law for a jury to decide. a. True b. False ANSWER: True Completion Copyright Cengage Learning. Powered by Cognero.

Page 37

Name:

Class:

Date:

27. Under the ____________________ test, a defendant is liable if the plaintiff would not have been injured if it had not been for the defendant’s negligence. This test is broader than the _________________________ test, which is used to prove causation when concurrent causes combine to produce a single, indivisible harm.

ANSWER: but-for, substantial factor 28. If a plaintiff is able to prove that one of two defendants, both of whom the plaintiff can show were negligent, caused the plaintiff’s injuries, but is unable to prove which one, the plaintiff can turn to the ____________________ theory, the _________________________ theory, or the ____________________ theory to prove actual causation.

ANSWER: alternate liability, market-share liability, concerted action 29. The question of proximate cause is also referred to as ____________________.

ANSWER: Legal cause 30. According to ____________________, a duty is owed to those in the ―zone of danger‖ while according to ____________________, a duty is owed to the world at large.

ANSWER: Cardozo, Andrews 31. Under the ____________________ rule, a defendant is liable for all the consequences of their negligent acts no matter how unforeseeable those consequences may be.

ANSWER: direct causation 32. The ____________________ rule requires a defendant to take the plaintiff as they find them.

ANSWER: eggshell skull 33. A(n) ____________________ cause is any act that contributes to the plaintiff’s injury but that occurs after the defendant’s negligent act, while a(n) ____________________ cause is an act that relieves the defendant of liability for a plaintiff’s injury.

ANSWER: intervening, superseding 34. The ____________________ test is often used to determine actual causation in toxic tort cases.

ANSWER: substantial factor 35. The _________________________ theory allows medical malpractice case plaintiffs to recover if they can show that the doctor’s failure to diagnose or negligence contributed to their injuries.

ANSWER: lost chance of recovery Subjective Short Answer 36. Why are some people critical of the but-for test?

ANSWER: As sweeping as the but-for test is, it does not encompass situations involving concurrent causes of harm to the plaintiff.

37. How does the substantial factor test differ from the but-for test?

ANSWER: Concurrent causes are those events that combine (concur) to cause the plaintiff’s harm, although either one of them alone could cause the harm without any contribution from the other. Under the substantial-factor test, an alternative to the but-for test, the question is whether the defendant was a substantial factor in producing the plaintiff’s injury. If the concurrent causes produce 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 Copyright Cengage Learning. Powered by Cognero.

Page 38

Name:

Class:

Date:

substantial factor in producing the plaintiff’s injuries.

38. Why do courts often use the substantial factor test rather than the but-for test in toxic tort cases?

ANSWER: Modern courts have struggled with the concept of causation in ―toxic tort‖ cases and have often adopted the less stringent substantial-factor test in concurrent-cause cases. The problem in cases of this type is proving that the toxin at issue, and not some other factor, was the cause of the plaintiff’s injury.

39. Under what circumstances might a plaintiff injured by a defective product use the market-share liability theory? How could this theory benefit the plaintiff?

ANSWER: This theory has been expanded to encompass three or more defendants in the area of product liability. The socalled market-share liability theory was developed in Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980) to allow recovery to the plaintiff who can show that the defendants were negligent but cannot prove which of the defendants caused the injury.

40. Why was proximate cause an issue in Palsgraf?

ANSWER: Due to the distance to the plaintiff from where the negligence occurred and the ―fluke‖ series of events leading to the injury. Proximate cause generally derives from a sense that a defendant should not be liable for a highly improbably or extraordinary consequence that stems from the defendant’s negligence. In proximate cause, the question is was the plaintiff’s injury a reasonably foreseeable consequence of the defendant’s conduct?

41. What is the Cardozo position in reference to proximate cause?

ANSWER: The defendant is liable for all reasonably foreseeable consequences of their negligence. They owe a duty of care to the reasonably foreseeable plaintiff. Liability can be no greater where the defendant’s act is inadvertent.

42. What is the Andrews position in reference to proximate cause?

ANSWER: The defendant owes a duty to the world at large and not just to those in the ―danger zone.‖ Similar to ―direct causation‖: the defendant is liable for all consequences flowing directly from the defendant’s actions no matter how unforeseeable. Due care is a duty imposed on each one of us to protect society from unnecessary danger. Was the action a natural and continuous sequence between cause and effect.

43. Why is the direct causation rule criticized by some?

ANSWER: The direct-causation rule is commonly criticized because a logical extension of the rule would result in limitless liability. This view holds defendant liable for all consequences of their negligent acts, no matter how unforeseeable those consequences may be, as long as they flow directly from their actions.

44. Give an example of an eggshell skull rule.

ANSWER: If a plaintiff suffers any foreseeable injury, the defendant is also liable for any additional unforeseen physical consequences. So, if a defendant inflicts a relatively minor impact on a plaintiff who dies because they have a skull of eggshell thinness, the defendant will be liable for the death. It is a ―take the plaintiff as you find them‖ exception.

45. Give an example of an intervening cause.

ANSWER: An intervening cause is anything that occurs after the defendant’s negligent act and that contributes to the plaintiff’s injury. When an injured person dies or suffers extended injuries due to a doctor’s malpractice in attempting to resolve the initial injuries sustained by the plaintiff. A reckless ambulance driver who causes an accident while transporting a patient and causes more extensive injuries to the plaintiff will be liable for those injuries.

46. When does an intervening cause become a superseding cause?

Copyright Cengage Learning. Powered by Cognero.

Page 39

Name:

Class:

Date:

ANSWER: An intervening cause is anything that occurs after the defendant’s negligent act and that contributes to the plaintiff’s injury. If the intervening cause rises to such a level of importance that it precludes the defendant’s negligence from being the proximate cause of the plaintiff’s injury, it becomes a superseding cause.

47. Describe one exception to the Palsgraf general rule.

ANSWER: One exception requires that a defendant ―take his plaintiff as he finds him‖—eggshell skull rule.

Another is the same general type of harm but unusual manner exception. In this exception, 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. Plaintiff being a member of a foreseeable class is another exception. Here, as long as the plaintiff is a member of a class to which there is a general foreseeability of harm, the defendant is liable.

48. What is the ―lost chance of recovery‖ theory and why was it developed?

ANSWER: Proof of actual cause can be particularly problematic in medical malpractice cases in which a doctor’s failure to diagnose may have contributed to a patient’s death. The court’s rejection of both the but-for and substantialfactor tests is because of the impossibility of the plaintiff being able to prove causation under either of these tests. The court develops an alternate theory of recovery—the ―lost chance of recovery‖ theory. This theory 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.

49. How might the question of superseding cause be involved in a case involving someone who injures another after being served liquor at a bar?

ANSWER: A superseding cause supersedes, or cancels out, the defendant tavern owner’s liability. If the defendant should have foreseen the possibility that an intervening cause or one like it might occur, the defendant remains liable.

Here the question is if the serving of liquor was the contributing factor in the assault. The question here is whether the drinking by the patron supersedes the negligence of the tavern owner.

Chapter 07-Negligence: Damages True / False 1. The purpose of punitive damages is to restore a plaintiff to the position they were in before being injured. a. True b. False ANSWER: False 2. Compensatory damages can be broken down into punitive and nominal. a. True b. False ANSWER: False 3. Nominal damages must have an accompanying physical injury. a. True b. False ANSWER: False 4. Medical expenses must be specially pleaded in a complaint.

Copyright Cengage Learning. Powered by Cognero.

Page 40

Name:

Class:

Date:

a. True b. False ANSWER: True 5. The per diem technique is an attempt to give a concrete value to punitive damages. a. True b. False ANSWER: False 6. The collateral source rule allows a plaintiff to recover damages even if they have been reimbursed through sick pay or insurance. a. True b. False ANSWER: True 7. Some people argue that awarding damages for pain and suffering may actually reinforce a plaintiff’s pain. a. True b. False ANSWER: True 8. Jurors are not allowed to take into consideration a plaintiff’s personal habits and individual characteristics in determining their recovery for future lost earnings. a. True b. False ANSWER: False 9. Most courts have shied away from allowing recovery for shortened life expectancy as a distinct compensable harm. a. True b. False ANSWER: True 10. A plaintiff cannot recover from the defendant if they have already recovered for some of his or her damages under Social Security or from the plaintiff’s employer’s sick pay benefits. a. True b. False ANSWER: False 11. A contingency fee arrangement may create a conflict of interest between a client and their attorney. a. True b. False ANSWER: True 12. Punitive damages may be reduced by a judge if found to be excessive. This is called an additur.

Copyright Cengage Learning. Powered by Cognero.

Page 41

Name:

Class:

Date:

a. True b. False ANSWER: False 13. Fair market value represents the lowest price that could be realized by selling the product on the open market. a. True b. False ANSWER: False 14. Punitive damages can be awarded in any negligence case. a. True b. False ANSWER: False 15. Some feel that punitive damages should be awarded to the state and not the plaintiff. a. True b. False ANSWER: True 16. Employers are never required to pay punitive damages for torts resulting from the acts of their employees. a. True b. False ANSWER: False

17. Recovery under loss of consortium can possibly lead to double recovery. a. True b. False ANSWER: True 18. Children, but not their parents, can recover for loss of consortium. a. True b. False ANSWER: False 19. Under the common law, when an individual died, the individual’s tort action died too. a. True b. False ANSWER: True 20. Wrongful death litigants must often focus their efforts on determining legislative intent. a. True Copyright Cengage Learning. Powered by Cognero.

Page 42

Name:

Class:

Date:

b. False ANSWER: True 21. In some states a survival action cannot exist if the decedent’s death was instantaneous. a. True b. False ANSWER: True 22. Pain and suffering can never be recovered in a wrongful death claim. a. True b. False ANSWER: False 23. Only spouses can recover under wrongful death statutes. a. True b. False ANSWER: False 24. Evidence of the plaintiff’s remarriage can never be disclosed in a wrongful death or survival action. a. True b. False ANSWER: False 25. Wrongful death actions are typically brought by the executor or the administrator of the decedent’s estate. a. True b. False ANSWER: False 26. In most states, the defendant in a wrongful death or survival action is barred from raising the defenses they could have raised against the decedent, had the decedent lived. a. True b. False ANSWER: False 27. Damages are sometimes discounted to prevent the plaintiff from receiving a windfall by collecting in the present for future damages. a. True b. False ANSWER: True 28. Some attorneys argue that inflation offsets the discounting of present value awards. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 43

Name:

Class:

Date:

ANSWER: True 29. Structured settlements are advocated by the plaintiff but are generally resisted by the defense. a. True b. False ANSWER: False 30. A plaintiff’s recovery may be reduced if the plaintiff fails to mitigate their damages. a. True b. False ANSWER: True 31. Some courts have imposed a physical harm requirement to minimize the possibility that a plaintiff is feigning their injuries. a. True b. False ANSWER: True 32. Some courts have circumvented the physical harm requirement in those cases where the plaintiff can show they were in the ―zone of danger.‖ a. True b. False ANSWER: True Completion 33. Compensatory damages are divided into two categories—____________________ damages, such as pain and suffering, and ____________________ damages, such as lost wages.

ANSWER: general, special 34. ____________________ damages are awarded when the plaintiff is able to establish the defendant’s liability but is unable to convince the trier of fact that actual harm or injury occurred.

ANSWER: Nominal 35. Some plaintiffs use the ____________________ technique to establish a concrete numerical value for a pain and suffering award based on hourly, daily, weekly, etc.

ANSWER: per diem 36. According to the ____________________ rule, a plaintiff is entitled to double recovery in that the plaintiff can recover from both the plaintiff’s insurance company and from the defendant.

ANSWER: collateral source 37. The _________________________ of property is based on the amount the property could be sold for on the open market.

ANSWER: fair market value Copyright Cengage Learning. Powered by Cognero.

Page 44

Name:

Class:

Date:

38. If a defendant’s conduct is reckless, willful, or indicative of ―an evil mind,‖ the plaintiff may be awarded ____________________ damages.

ANSWER: punitive 39. A(n) _________________________ claim, which allows a spouse to recover for lost services, is a(n) ____________________ claim in that it derives from the injured spouse’s underlying claim.

ANSWER: loss of consortium, derivative 40. The spouse of a person killed in an accident can recover for their damages under a(n) _________________________ statute, while an action brought by the executor or administrator of an estate is usually brought under a(n) ____________________ statute.

ANSWER: wrongful-death, survival 41. To prevent a plaintiff from realizing a windfall in damages, a defendant may propose the plaintiff’s award be discounted to the ____________________ of the award.

ANSWER: present value 42. To reduce a plaintiff’s tax burden and to relieve the plaintiff of the responsibility of investing their award, a defendant may suggest that the plaintiff’s future damages be awarded using a(n) _________________________.

ANSWER: structured settlement 43. Because mental suffering is considered ____________________ (because it attaches to the physical injury), some courts that adhere to the ____________________ rule require the showing of some kind of physical harm before they will allow the plaintiff to recover for their mental suffering.

ANSWER: parasitic, impact 44. Under the _________________________ rule, a plaintiff is obligated to minimize their damages.

ANSWER: avoidable consequences Subjective Short Answer 45. What is the difference between compensatory damages and nominal damages?

ANSWER: Compensatory damages are designed to compensate the victim for their losses and restore the victim to the position the victim was in before the victim sustained their injuries. Nominal damages are awarded when no actual damages are proven, but a tort is shown to have been committed. They are usually awarded in intentional and strict liability cases in which liability is established but where no actual harm occurred. They allow a plaintiff to be vindicated but do nothing in terms of compensating them.

46. What is the purpose of punitive damages?

ANSWER: Also referred to as exemplary damages. 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. Not allowed in negligence cases. They are allowed when the defendant commits an intentional tort such as assault or infliction of emotional distress. These are also commonly used in product liability cases.

47. What is the difference between general and special damages?

Copyright Cengage Learning. Powered by Cognero.

Page 45

Name:

Class:

Date:

ANSWER: General and special damages are both a type of compensatory damages. General damages are the type that generally result from the kind of conduct engaged in by the defendant. Special damages are specific or unique to the plaintiff. Example of general damages would be compensation for pain and suffering. Example of special damages would be medical expenses, lost wages, and future impairment of earnings. Most of the time, special damages must be specifically pleaded in a complaint, whereas general damages do not.

48. What is the difficulty in proving damages for pain and suffering?

ANSWER: Getting the jury to set an amount that fairly compensates the plaintiff without appearing to be excessive.

The problem of subjectivity in reference to pain and suffering damages is a topic of much debate. Quantification is very difficult. Equitable compensation remains a goal of tort law. The struggle continues in how to balance the needs of plaintiffs, defendants, and the rest of society.

49. How does the per diem technique assist in the process of providing damages for pain and suffering?

ANSWER: It provides a mechanism that is easily used to calculate damages. It assigns a numerical value to the amount of suffering experienced on a daily, hourly, or minute-by-minute basis. It is allowed by some courts, but the majority of courts leave it up to the defendants to dissuade juries as to its reasonableness.

50. What is one criticism of awarding damages for pain and suffering?

ANSWER: Some maintain that such damages should be allowed only when there is a physiological basis for the pain.

51. Why might you find it difficult to compute future lost earnings for a plaintiff who was employed sporadically as a contractor?

ANSWER: It is difficult to determine what the plaintiff’s potential future earnings might be. The plaintiff may have obtained credentials for a better paying job.

52. Explain the collateral source rule.

ANSWER: A plaintiff is often reimbursed for their out-of-pocket expenses, including lost wages and payments for medical care, by the plaintiff’s insurance company. Nevertheless, under the collateral-source rule the plaintiff is entitled to recover these damages again from the defendant. Therefore, under the rule, a plaintiff can recover for lost wages even if they have been reimbursed through sick pay provided by their employer or by disability benefits through workers’ compensation. Social Security disability benefits, welfare payments, vacation pay, sick pay, and Medicare payments also do not count against a plaintiff’s recovery under this rule. Even if a plaintiff receives free services from friends or family members, the plaintiff may recover the reasonable value of those services.

The rule precludes the admission of evidence to the jury regarding payment of benefits to the injured party from a source other than the tortfeasor. In many cases the benefits are one for which the plaintiff has directly or indirectly paid.

53. What is the justification for the collateral source rule?

ANSWER: The rationale for this rule dates back to 1854 and 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. The public policy underlying this rule is that the tortfeasor is responsible to compensate the victim for the total harm caused by the tortfeasor’s conduct. Additionally, if the plaintiff’s recovery were offset by collateral benefits, the deterrent effect of tort law would be diminished. Under this rule, the plaintiff is assured full compensation for all medical, physical, and emotional injuries.

Copyright Cengage Learning. Powered by Cognero.

Page 46

Name:

Class:

Date:

54. Give one criticism against the use of contingency fee arrangements.

ANSWER: Some maintain that it creates a conflict of interest between the attorney and the client in reference to settlement offers. In some cases, attorneys receive much more than would be considered a reasonable fee for the efforts they expended.

55. If the plaintiff’s car is totaled in an accident, how will the value of the car be computed?

ANSWER: By calculating the car’s fair market value at the time of the accident. What is the amount the property could have sold for on the open market? It is the highest price one seeking to sell the property could have realized and not the lowest at which it could have been sold.

56. What is one argument given against the awarding of punitive damages?

ANSWER: Punitive damages have been criticized as constituting undue compensation to the plaintiff because they are not related to the plaintiff’s injury. Some maintain that punitive damages are in essence criminal fines that should be paid to the state and not to the plaintiff.

57. What is the counterargument for the answer presented in question #56?

ANSWER: Punitive damages act as a deterrent to those with evil motivations. They also compensate plaintiffs for the expenses of litigation, such as attorneys’ fees, which they would normally have to bear themselves.

58. For what losses is a spouse who is suing for loss of consortium seeking to recover?

ANSWER: Loss of consortium encompasses recovery for lost services such as companionship, sex, earnings outside the home, comfort, support, etc..

59. What is the difference between a wrongful death claim and a survival action?

ANSWER: In a wrongful death the damages are awarded to third parties, while in survival actions the damages are awarded to the estate of the deceased. Wrongful death actions allow third parties to recover for losses they sustained as a result of the decedent’s death. Survival action recovery becomes a part of the asset and reachable by creditors. Recovery for pain and suffering in survival actions is allowed only if the decedent was conscious of their pain.

60. Who can recover under a wrongful death statute?

ANSWER: Third persons, usually the decedent’s spouse and children.

61. Who can recover under a survival statute?

ANSWER: Decedent’s estate.

62. Why would a defendant want to discount a plaintiff’s award to its present value?

ANSWER: Discounting an award prevents the plaintiff from realizing an unwarranted windfall and reduces losses to the defendant.

63. What argument might a defendant give for having a structured settlement?

ANSWER: First, the plaintiff does not have the responsibility of making arrangements to invest the money if the plaintiff receives periodic payments over a long period of time. Money will be available to cover basic human needs.

Second, a large amount of the money will be prudently invested and will not be squandered through ignorance, bad advice, or frivolity. Third, the income tax that the plaintiff has to pay is usually minimized using a structured settlement. Although tax need not be paid on a lump-sum amount, it does have to be paid on any income resulting from an investment of a lump-sum damage award.

Copyright Cengage Learning. Powered by Cognero.

Page 47

Name:

Class:

Date:

64. Why might a plaintiff resist a structured settlement?

ANSWER: The downside of these settlements from the plaintiff’s perspective is the inability to freely spend the monies; the uncertainty of the real present cash value of the settlement (because the negotiated figure is in the hands of the defendant); the fixed nature of the payments, which cannot be modified over time; the possibility that the death of the recipient may terminate some payments; and the possibility of insolvency of the company responsible for the payments.

65. What might a defendant argue if a plaintiff, who was not wearing a seat belt at the time of their injuries, was injured more seriously than they would have been if they had been wearing a seat belt? Assume the defendant’s negligence was the cause of the accident and that the state in which the accident occurred mandates the wearing of seat belts.

ANSWER: That the defendant should not be responsible for any damages incurred by the plaintiff as a result of not wearing the seatbelt. Basically, arguing that the plaintiff could have, but did not, mitigate their damages. This would fall under the avoidable consequences rule which states that a plaintiff cannot recover for any damages they could have reasonably avoided.

66. Why do some courts require that a plaintiff who has experienced mental suffering also show some type of physical harm?

ANSWER: The theory is that the lack of objective physical symptoms greatly increases the risk of fraudulent claims and therefore recovery is denied.

67. In what instances are some courts willing to forego the physical harm requirement?

ANSWER: Many courts have allowed an exception to this general rule in cases involving the negligent mishandling of corpses (such as the misplacement or dismemberment of a corpse) or in cases involving the negligent transmission of an erroneous message regarding the death of a family member. Such cases are thought by their very nature to cause actual suffering and therefore minimize the risk of fake claims.

Chapter 08-Negligence: Defenses True / False 1. The only rationale behind contributory negligence is that plaintiffs should be punished for failing to protect themselves from harm. a. True b. False ANSWER: False 2. Contributory negligence completely bars the plaintiff from recovery. a. True b. False ANSWER: True 3. The last clear chance doctrine was developed to avoid the harshness of the contributory negligence rule. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 48

Name:

Class:

Date:

4. The last-clear chance doctrine is essentially a defense for the plaintiff. a. True b. False ANSWER: True 5. The question of contributory negligence is a question of law for a judge to decide. a. True b. False ANSWER: False

6. The last clear chance doctrine is inapplicable when the defendant’s original act of negligence precludes the defendant from avoiding the accident after they become aware of the plaintiff’s danger. a. True b. False ANSWER: True 7. Contributory negligence is not a defense if the defendant acts intentionally but is a defense if the defendant acts recklessly. a. True b. False ANSWER: False 8. A defendant who is negligent per se is always entitled to raise contributory negligence as a defense. a. True b. False ANSWER: False 9. Most states have retained contributory negligence rather than adopting comparative negligence. a. True b. False ANSWER: False 10. Comparative negligence is an alternative to the all-or-nothing approach of contributory negligence. a. True b. False ANSWER: True 11. The 50 percent approach is problematic when jurors assign a 50-50 apportionment in terms of fault of the parties. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 49

Name:

Class:

Date:

ANSWER: True 12. The pure comparative negligence standard allows recovery for the plaintiff if they are less at fault than the defendant. a. True b. False ANSWER: False 13. Under the 50 percent approach, a plaintiff can never recover if their negligence exceeds the negligence of any one defendant. a. True b. False ANSWER: False 14. The Uniform Comparative Fault Act rejects the last clear chance doctrine. a. True b. False ANSWER: True 15. A defendant who is reckless may rely on the defense of comparative negligence to reduce the plaintiff’s recovery. a. True b. False ANSWER: True 16. Some states consider assumption of risk to be a form of contributory negligence. a. True b. False ANSWER: True 17. Some states have characterized contributory negligence as adventurousness and assumption of risk as carelessness. a. True b. False ANSWER: False 18. A defendant cannot use assumption of risk if the plaintiff should have known of the dangerousness of the risk that led to their injury. a. True b. False ANSWER: False 19. An objective standard is used to assess the reasonableness of a defendant’s conduct in cases of contributory negligence, while a subjective standard is used in cases involving assumption of risk. a. True Copyright Cengage Learning. Powered by Cognero.

Page 50

Name:

Class:

Date:

b. False ANSWER: True 20. Assumption of risk can never be raised as a defense in strict liability cases. a. True b. False ANSWER: False 21. An express agreement to assume a risk is not enforced by the courts if the defendant had unusual bargaining power or was the sole provider of a service. a. True b. False ANSWER: True 22. A plaintiff cannot assume a risk of which they are unaware even if a reasonable person would have been aware of such a risk. a. True b. False ANSWER: True 23. Most cases involving sports allow the defendant to use assumption of risk against players. a. True b. False ANSWER: True 24. If a plaintiff’s conduct constitutes contributory negligence and assumption of risk, the defendant must choose only one in all jurisdictions. a. True b. False ANSWER: False 25. Immunity is a complete defense to all tort liability. a. True b. False ANSWER: True 26. . The FTCA allows money damages to be collected against the United States for all intentional torts of its employees. a. True b. False ANSWER: False 27. A federal employee has no liability when a discretionary function is involved, even if they abuse their duty.

Copyright Cengage Learning. Powered by Cognero.

Page 51

Name:

Class:

Date:

a. True b. False ANSWER: True

28. Most states have abolished sovereign immunity today. a. True b. False ANSWER: True 29. In local government, proprietary functions are not subject to immunity. a. True b. False ANSWER: True 30. Most judges and legislators receive complete immunity if acting in the scope of their duties. a. True b. False ANSWER: True 31. Most states have retained interspousal immunity but have abolished, or at least limited, parent-child immunity. a. True b. False ANSWER: False 32. Police departments and school systems are local governmental functions that are subject to immunity. a. True b. False ANSWER: True 33. The rationale underlying the immunity of judges is that they must be able to carry out their duties without fear of being sued. a. True b. False ANSWER: True 34. If governmental immunity is abolished, the immunity of public officials is abolished as well. a. True b. False ANSWER: False

Copyright Cengage Learning. Powered by Cognero.

Page 52

Name:

Class:

Date:

35. Under the common law, spouses were considered one entity and could not sue one another. a. True b. False ANSWER: True 36. The fear that the abolition of spousal immunity would result in a flood of fraudulent cases has come true in those states that have abolished such immunity. a. True b. False ANSWER: False 37. In some states, a defendant who has negligently injured a child can bring a claim of negligent supervision against the child’s parents. a. True b. False ANSWER: True 38. Some argue that charitable organizations should be immune from suit because beneficiaries of such organizations impliedly waive their rights to sue by accepting the benefits the organization has to offer. a. True b. False ANSWER: True 39. The majority of courts have abolished charitable immunity. a. True b. False ANSWER: True 40. Statutes of limitations protect defendants from having to defend stale claims. a. True b. False ANSWER: True 41. Statutes of limitations begin to run when actual injury to the plaintiff or the plaintiff’s property occurs. a. True b. False ANSWER: True 42. The discovery doctrine mitigates the harshness of some statutes of limitation. a. True b. False ANSWER: True 43. Statutes of repose allow plaintiffs who are injured by defective products to recover even though they might not have Copyright Cengage Learning. Powered by Cognero.

Page 53

Name:

Class:

Date:

been able to recover pursuant to a statute of limitations. a. True b. False ANSWER: False 44. Most statutes of repose are 10-15 years. a. True b. False ANSWER: False 45. Some argue that the discovery doctrine has contributed to the rising cost of medical malpractice insurance. a. True b. False ANSWER: True 46. Contributory negligence arguably undermines confidence in the jury system. a. True b. False ANSWER: True

47. Claimants’ failure to comply with statutory notice requirements usually has no effect on their ability to recover. a. True b. False ANSWER: False

48. Under the FTCA, an inmate of a correctional institution is prohibited from filing suit against an employee of that institution. a. True b. False ANSWER: False Completion 49. In a(n) ____________________ negligence system, a plaintiff that contributes to their own injuries is barred from recovery, while in a(n) ____________________ negligence system, their recovery is reduced in direct proportion to the degree that the plaintiff contributed to their own injuries.

ANSWER: contributory, comparative 50. Under the _________________________ doctrine, a defendant remains liable if they had an opportunity to avoid the Copyright Cengage Learning. Powered by Cognero.

Page 54

Name:

Class:

Date:

harm that occurred to the plaintiff and failed to do so, assuming the plaintiff did not have such an opportunity. This doctrine is not applicable, however, in the _________________________ case in which the defendant’s original act of negligence prevents them from avoiding the accident.

ANSWER: last clear chance, first clear chance 51. If a defendant is negligent per se, they cannot raise the defense of contributory negligence unless ____________________________________________________________ and ______________________________________________________________________.

ANSWER: the statute was enacted for the sole purpose of protecting the class of persons of which the plaintiff was a member, the statute’s intent was to place sole responsibility on the defendant 52. In those states that have adopted comparative negligence, the plaintiff can recover even if a jury determines the plaintiff was 70 percent responsible for their own injuries under a(n) ____________________ comparative negligence standard but cannot recover under a(n) ____________________ approach. Under the latter approach, if a jury assigns a 50-50 apportionment in terms of blame, a plaintiff cannot recover under the _________________________ approach but can recover under the _________________________ approach.

ANSWER: pure, fifty percent, not as great as, not greater than 53. In some states, assumption of risk is distinguished from contributory negligence in that one who acts with adventurousness is said to have _________________________, while one who acts carelessly is said to have ______________________________. Furthermore, under assumption of risk, a(n) ____________________ standard is used to evaluate the plaintiff’s conduct, while under contributory negligence, a(n) ____________________ standard is used.

ANSWER: assumed the risk, contributed to their negligence, subjective, objective 54. Under the____________________, the federal government is not immune from suit due to the negligence of its employees. The government has no liability, however, if the employee is performing a(n) ____________________ function at the time they act negligently.

ANSWER: FTCA, discretionary 55. At the level of local government, ____________________ functions are subject to immunity while ____________________ functions are not.

ANSWER: governmental, proprietary 56. ____________________ and ____________________ are two types of public officials who receive complete immunity as long as the act complained of is within the scope of their duties.

ANSWER: Legislators, judges Judges, legislators 57. Some courts have used the ____________________ theory, based on the premise that funds paid to charitable institutions should not be used to pay judgments resulting from tort claims, to justify charitable immunity. An alternate theory that is also used to justify charitable immunity is called the ____________________ theory.

ANSWER: trust fund, implied waiver 58. The biggest question surrounding statutes of limitations is the question of ____________________. The so-called ____________________doctrine was developed to deal with this problem, providing that statutes begin to run when a problem is or should have been discovered.

Copyright Cengage Learning. Powered by Cognero.

Page 55

Name:

Class:

Date:

ANSWER: accrual, discovery 59. Statutes that limit the time period in which someone can sue the manufacturer of a product are called ____________________.

ANSWER: statutes of repose 60. The exclusive remedy for torts committed by federal officers and employees is the ____________________.

ANSWER: FTCA 61. A plaintiff filing a(n) ____________________ action must prove a state employee acting under ―color of state law‖ violated the plaintiff’s constitutional rights.

ANSWER: Sec. 1983 Subjective Short Answer 62. What is the difference in consequences to a plaintiff that is found contributorily negligent as to whether the claim has been filed in a contributory negligence state or a comparative negligence state?

ANSWER: If plaintiff(s) were contributorily negligent—if they contributed in some way to their own injuries—they would be totally barred from recovery in a contributory negligence state. If the state in which the suit is filed has adopted a system of comparative negligence rather than contributory negligence, their recovery will be reduced in direct proportion to their own degree of negligence. What amount would then depend on whether the state was a pure comparative negligence or a 50:50 jurisdiction.

63. What was the rationale behind the development of contributory negligence? Why have many courts found exceptions to this rule?

ANSWER: The results rendered by the rule of contributory negligence are often harsh and unjust. Worthy plaintiffs are often denied recovery and blameworthy defendants go unscathed. As a result, the courts have developed various escape mechanisms by which plaintiffs can avoid this rule. One way, which has been adopted in every jurisdiction that adheres to the contributory-negligence system, is the requirement that contributory negligence be proved and specifically pleaded by the defendant. Additionally, in most jurisdictions the question of contributory negligence is left to the jury. Arguably, juries have an opportunity to apply a comparativenegligence standard in those cases in which application of a contributory-negligence standard would lead to unfair results.

64. What is the last clear chance doctrine?

ANSWER: It limits contributory negligence by the fact that if the defendant has an opportunity that is unavailable to the plaintiff to prevent the harm that occurs and does not take advantage of it, the defendant will remain liable despite the plaintiff’s contributory negligence. In essence the defendant’s failure to take advantage of an opportunity to prevent the harm negates, or wipes out, the plaintiff’s contributory negligence.

65. Identify one circumstance in which the last clear chance doctrine is not applicable.

ANSWER: The defendant is unable to avoid harming the plaintiff even though the defendant is aware of the danger because of the defendant’s earlier negligence (―first clear chance doctrine‖). If both the defendant and the plaintiff are inattentive so that neither discovers the danger it will not apply.

66. Name two circumstances in which contributory negligence is not a defense.

ANSWER: a. Contributory negligence is not a defense to an intentional tort.

Copyright Cengage Learning. Powered by Cognero.

Page 56

Name:

Class:

Date:

b. A defendant who is negligent per se might not be able to raise the defense of contributory negligence.

67. What is the difference between a pure comparative negligence standard and a 50:50 approach?

ANSWER: The ―pure‖ form of comparative negligence, apportions liability in direct proportion to fault in all cases. The second basic form of comparative negligence, of which there are several variants, applies apportionment based on fault up to the point at which the plaintiff’s negligence is equal to or greater than that of the defendant (50 percent or more)—when that point is reached, the plaintiff is barred from recovery.

68. Suppose a jury determines that the plaintiff is 50 percent to blame for their injuries and that the defendant is 50 percent to blame for their injuries. What will the plaintiff recover if the jurisdiction in which the claim is litigated adheres to the ―not as great as‖ approach?

ANSWER: Nothing. The plaintiff cannot recover if their fault is as great as the defendant’s.

69. What is a potential problem in a case involving multiple defendants in a jurisdiction that has adopted the 50 percent approach?

ANSWER: The plaintiff may be more negligent that any of the individual defendants but still less than 50 percent of the total negligence of all the parties.

70. Name two differences between contributory negligence and assumption of risk.

ANSWER: a. Some courts have characterized contributory negligence as “carelessness” and assumption of risk as “adventurousness.” b. With contributory negligence it is the reasonable person standard; with assumption of risk, it is a subjective standard. c. Contributory negligence is not a defense to reckless conduct. d. Assumption of risk is a defense to reckless conduct. e. Assumption of risk is a defense in strict liability cases.

71. In what circumstance might a court not enforce an express agreement to assume the risk?

ANSWER: A plaintiff must actually be aware of any risk they are said to have assumed. If a limitation on liability is buried in fine print where the plaintiff is unlikely to see it, it will not be binding on the plaintiff. Additionally, waivers of liability are valid only in reference to the defendant’s negligence and not for their intentional tortious acts nor for their gross or willful and wanton negligence. One area in which the courts are unwilling to uphold a waiver, no matter how well informed that waiver is, is in the field of medical care.

72. What must a defendant prove before they can allege that a plaintiff impliedly assumed the risk?

ANSWER: A plaintiff is said to have impliedly assumed the risk when their conduct shows that the plaintiff was aware of the risk in question and voluntarily agreed to bear that risk. For this principle to be applicable the plaintiff must actually be aware of the particular risk in question. It is not enough that the plaintiff merely should have known of the risk involved. The plaintiff must also voluntarily consent to the risk. Consent is not voluntary if the plaintiff had no reasonable choice but to confront a danger.

73. What does the FTCA provide in terms of liability for negligent and intentional torts committed by government employees?

ANSWER: In general, the FTCA provides that money damages can be recovered against the United States ―for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant.‖ The United States is not liable, Copyright Cengage Learning. Powered by Cognero.

Page 57

Name:

Class:

Date:

for example, for intentional torts such as assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution except when these torts are committed by federal law enforcement officials.

74. For what reason was interspousal immunity developed under the common law?

ANSWER: Under the common law spouses were immune from suit by their spouses and parents were immune from suit by their children. The idea was that husband and wife were ―one‖ and therefore could not sue each other.

75. What is the status of interspousal immunity today?

ANSWER: Even those states that have not completely abolished interspousal immunity have applied certain limitations.

Some, for example, have abolished immunity in reference to automobile accidents or when the tort committed was intentional.

76. What is the status of parent–child immunity today?

ANSWER: Some states have chosen to abolish this immunity, particularly in cases involving motor vehicle accidents. The reason commonly given is that most suits are between a family and its insurance company and not between individual members of a family. Even in those states that have not abolished such immunity, many have allowed suit when the tort was intentional, when it involved loss of property or other pecuniary loss, when the injury occurred in the course of a business activity, when the child was legally emancipated or was a stepchild of the defendant, or when the parent-child relationship was terminated by the death of one of the parties prior to the suit. No immunity exists between siblings or in other family relationships.

77. Explain the two theories that have been advanced to justify charitable immunity.

ANSWER: Some courts have argued that the beneficiaries of charitable organizations impliedly waive their right to sue when they accept the benefits offered by that organization. Other courts have characterized this so-called implied-waiver theory as a legal fiction that has no relevance in emergency situations, such as the receipt of emergency aid from a charitable hospital.

The other rationale used to justify charitable immunity is sometimes referred to as the trust-fund theory.

78. What is the potential problem in reference to the statute of limitations in cases involving defective products?

ANSWER: The injury may not occur until long after the purchase of the defective product. Also, the plaintiff may not reasonably have discovered their injury until after the statute had run.

79. How have some courts circumvented the problem presented in the previous question?

ANSWER: To mitigate the harshness of a statute that precludes recovery in a case where the injury is not apparent until long after it accrued, many courts have created the so-called discovery doctrine, which provides that the statute does not begin to run until the injury is, or should have been, discovered.

80. What is a statute of repose and when does it begin to run?

ANSWER: Whereas the statute of limitations begins to run at the time of injury, a statute of repose begins to run at the date of sale of a product. Such statutes are designed to limit a manufacturer’s liability, to lower insurance costs for manufacturers, and to introduce a sense of certainty in the area of product liability litigation. Most statutes of repose are five to twelve years and in some cases may bar suit even before injury occurs.

Chapter 09-Malpractice True / False Copyright Cengage Learning. Powered by Cognero.

Page 58

Name:

Class:

Date:

1. All professionals are required to meet national standards of care. a. True b. False ANSWER: False 2. An unfavorable outcome does not necessarily equate with negligence. a. True b. False ANSWER: True 3. The fact that other professionals would have chosen a different course of action than the defendant professional did is indicative of professional negligence. a. True b. False ANSWER: False 4. Professionals who resort to unorthodox procedures are more likely to be found negligent than professionals who rely on more conventional techniques. a. True b. False ANSWER: True 5. A professional may be found negligent for failing to refer a client to a specialist. a. True b. False ANSWER: True 6. A professional is obligated to pay attention to their clients’ complaints and feedback. a. True b. False ANSWER: True 7. Specialists are held to the same standard of care as generalists. a. True b. False ANSWER: False 8. Specialists are typically held to a national standard of care in their field of expertise. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 59

Name:

Class:

Date:

9. Attorneys are always held to a general standard of care and cannot be considered specialists. a. True b. False ANSWER: False 10. A physician has an obligation to disclose all relevant facts to their clients in order for them to make an informed decision. a. True b. False ANSWER: True 11. The duty to warn a patient of risks increases as the probability or severity of the risks increases. a. True b. False ANSWER: True 12. A physician is never obligated to advise a patient about alternative treatments. a. True b. False ANSWER: False 13. In determining what must be disclosed to a patient, some courts consider the expectations and needs of a reasonable layperson rather than the practices of a reasonably careful practitioner under similar circumstances. a. True b. False ANSWER: True 14. Even if a risk is highly improbable and the consequence of the risk is relatively minor, a physician is obligated to advise a patient about the risk. a. True b. False ANSWER: False 15. There is a close connection between a patient’s mental state and their response to treatment. a. True b. False ANSWER: True 16. A plaintiff alleging lack of consent may sue on the basis of either battery or negligence. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 60

Name:

Class:

Date:

17. If an outcome is an unpredictable consequence of the professional’s conduct, or unforeseeable, the plaintiff will not be able to recover. a. True b. False ANSWER: True 18. Plaintiffs in professional negligence cases are required to prove the standard of care by using experts that use the same practices that the defendant does. a. True b. False ANSWER: False 19. A professional can either refute a claim of negligence or raise affirmative defenses. a. True b. False ANSWER: True 20. If a patient delays treatment and that causes greater injury, the professional can use the affirmative defense of contributory negligence. a. True b. False ANSWER: True 21. Treatment given during an emergency or life and death situation should be to the same level as those provided under less stressful conditions. a. True b. False ANSWER: False 22. Maintaining adequate records may help to mitigate any negligence. a. True b. False ANSWER: True 23. The typical lawyer of today generally has no more than one malpractice claim filed against them during their career. a. True b. False ANSWER: False 24. Only 10 percent of malpractice claims result in an insurance claim. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 61

Name:

Class:

Date:

ANSWER: True 25. Litigators are the least likely to be sued for malpractice. a. True b. False ANSWER: False 26. The greatest number of errors committed by litigators are administrative errors. a. True b. False ANSWER: True 27. A legal assistant who engages in the unauthorized practice of law can cause their attorney employer to be liable for malpractice. a. True b. False ANSWER: True Completion 28. Because of the _________________________ between a professional and a client, which is based on trust and confidence, the professional has an obligation to reveal all relevant facts to the client.

ANSWER: fiduciary relationship 29. Under the ____________________ doctrine, a physician has an obligation to warn a patient of any risks if they are ____________________ risks.

ANSWER: informed consent, material 30. Professionals can reduce the chances of being sued for negligence if they ___________________________________ and ______________________________________________________________________.

ANSWER: maintain a reasonable workload, learn to manage their businesses, are willing to expend the time necessary to meet their clients’ needs Subjective Short Answer 31. What level of skill is an attorney expected to exhibit?

ANSWER: The duty of care required of professionals is one of reasonableness. A professional is required to have the skill and learning commonly possessed by members in good standing within that profession. If an attorney holds themselves out to be a specialist in a particular field, they will be held to that higher standard.

32. How does the standard of care of a neurosurgeon differ from the standard of care of a general practitioner?

ANSWER: Specialists are held to a higher standard of care than generalists. They must adhere to the standard of the ―reasonably careful and prudent specialist‖ in that field. Therefore, a neurosurgeon is held to the standard of care of the average neurosurgeon rather than the average physician. As a result, a specialist may be found negligent in a situation in which a general practitioner doing the same thing might not.

Copyright Cengage Learning. Powered by Cognero.

Page 62

Name:

Class:

Date:

33. Name three general ways in which an attorney might be found professionally negligent.

ANSWER: Any three of the following: Failure to use good judgment in choosing course of action, to the extent that the action chosen constitutes a deviation from the standard of care reasonably expected of professionals in the field Failure to have skills and learning commonly possessed by members in good standing within a profession Failure to ask for essential information from a client Failure to make referrals when appropriate Failure to keep abreast of changes in the profession Failure to follow up on a client’s progress, condition, or status Failure to adhere to a specialist’s standard of care when appropriate Failure to provide informed consent 34. What are two things a physician is obligated to tell a patient under the informed consent doctrine?

ANSWER: Under the doctrine of informed consent, a physician has a duty to warn patients of possible hazards, complications, and expected and unexpected results of treatment, as well as risks of any alternative treatments.

Particularly if a therapy is new or experimental, the physician has a duty to warn the patient that all side effects of the treatment are not completely known. The duty to warn increases as the probability or severity of risk to the patient increases. Any patient who is unaware of the inherent risk of a proposed procedure cannot voluntarily consent to that procedure.

35. Why might a patient sue on the basis of battery rather than negligence?

ANSWER: The practical difference between the two theories is that if battery is alleged, lay-witness testimony is sufficient. In cases of negligence, however, expert witnesses are required to testify to the standard of care and the fact that it was breached. Also, the statute of limitations for battery is typically longer than the statute for negligence.

36. What are two defenses a professional might raise to a malpractice claim?

ANSWER: Any two of the following: Rebut plaintiff’s factual allegations Prove plaintiff was negligent and that plaintiff’s negligence was concurrent with the professional’s and contributed to the damages/injuries Prove plaintiff assumed the risk by knowingly and voluntarily consenting to risks involved in treatment Prove state of emergency (in medical situations) 37. Why should an attorney always maintain adequate records for every client they deal with?

ANSWER: Maintenance of adequate records on a client’s case may be of critical importance in proving that no negligence occurred. Professionals should therefore allocate time for the completion of such records even though it may seem a frivolous expenditure of valuable time when being done. The passage of time weakens our memories.

Therefore, a professional confronted with a lawsuit one, two, or more years after they have last seen the client may not remember anything about the case. The professional will be grateful in that circumstance if they can locate records that can be used to refresh his or her recollection and that the professional can use to establish a defense. Of course, such records can also be used to build the plaintiff’s case.

38. What are three ways a professional can avoid malpractice exposure?

ANSWER: Maintain a reasonable workload, calendar deadlines, maintain backup calendar, maintain client confidences, be alert to client dissatisfaction, keep clients well informed, return client phone calls and respond in a timely fashion, keep client files well organized, use management techniques and devices that enhance Copyright Cengage Learning. Powered by Cognero.

Page 63

Name:

Class:

Date:

efficiency, allocate time necessary to complete tasks completely, bill periodically and in detail, monitor accounts receivable on a regular basis.

39. Discuss pretrial review panels and practice guidelines and how they affect malpractice claims.

ANSWER: Some states require pretrial review panels to hear malpractice claims, providing that these claims must be submitted to a panel for findings on the issues of liability or damages before proceeding to trial. Some of these statutory provisions, which are designed to encourage settlement, have been attacked as a denial of the constitutional right of access to the courts.

A few states have enacted legislation called practice guidelines, which define the standard of care to be used in certain clinical situations. The standardization of minimal actions necessary for care protects physicians from malpractice suits and discourages physicians from practicing defensive medicine. Under this system, doctors need only demonstrate that they have complied with the guidelines to avoid litigation.

Chapter 10-Misrepresentation, Nuisance, and Other Torts True / False 1. The tort of misrepresentation is interwoven with other types of tortious behavior. a. True b. False ANSWER: True 2. Intentional misrepresentation was equivalent to deceit under common law. a. True b. False ANSWER: True 3. Fraud and misrepresentation are two distinct torts. a. True b. False ANSWER: False 4. Negligently concealing a fact from the plaintiff can constitute misrepresentation. a. True b. False ANSWER: False 5. Actions alone may not constitute concealment. a. True b. False ANSWER: False 6. Plaintiffs have no obligation to disclose the existence of latent defects.

Copyright Cengage Learning. Powered by Cognero.

Page 64

Name:

Class:

Date:

a. True b. False ANSWER: False 7. Half-truths can be the basis of a misrepresentation claim. a. True b. False ANSWER: True 8. For purposes of misrepresentation, arm’s-length transactions require more disclosure than transactions involving those having a fiduciary relationship. a. True b. False ANSWER: False 9. The courts are more likely to find misrepresentation if an undisclosed fact is a material one. a. True b. False ANSWER: True 10. Plaintiff’s reliance must occur in the type of transaction the defendant could reasonably expect the plaintiff to engage in as a result of the reliance. a. True b. False ANSWER: True 11. For purposes of intentional misrepresentation, a defendant is liable only to those whom they intended to influence by the misrepresentation. a. True b. False ANSWER: False 12. Under modern law, if an architect supplies erroneous specifications to a builder, a subcontractor who relies on those specifications will not be able to sue the architect for misrepresentation because the specifications were not given to them personally. a. True b. False ANSWER: False 13. Those who incorporate misstatements into commercial documents are liable to those who suffer as a result of justifiable reliance on those misstatements. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 65

Name:

Class:

Date:

14. A defendant may never be liable for misrepresentation for making statements that are merely beliefs. a. True b. False ANSWER: False 15. A plaintiff can recover for misrepresentation even if the plaintiff investigated the defendant’s representations and relied totally on their investigation in deciding to rely on those representations. a. True b. False ANSWER: False 16. If a fiduciary relationship exists between the plaintiff and defendant, or if the defendant purports to have special knowledge, the plaintiff may be justified in relying on the defendant’s opinion. a. True b. False ANSWER: True 17. A defendant cannot be found liable for ―puffing.‖ a. True b. False ANSWER: True 18. Plaintiffs are not entitled to rely on the opinions of others even if an opinion is expressed by a disinterested party. a. True b. False ANSWER: False 19. If a defendant makes an opinion implying that no facts incompatible with that opinion exist (when in fact the defendant knows they do), they can be liable for misrepresentation. a. True b. False ANSWER: True 20. Defendants can never be found liable for making predictions because predictions are considered opinions. a. True b. False ANSWER: False 21. In some cases, a plaintiff may be justified in relying on a defendant’s statement regarding the defendant’s intentions. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 66

Name:

Class:

Date:

22. To recover for misrepresentation, the plaintiff must prove that their losses were a reasonably foreseeable result of the misrepresentation. a. True b. False ANSWER: True 23. Historically, claims for negligent misrepresentation were not allowed. a. True b. False ANSWER: True 24. A person who makes a negligent misrepresentation is liable to anyone whom they reasonably expect to learn about the misrepresentation. a. True b. False ANSWER: False 25. The plaintiff may request to be put in the position they were in before the misrepresentation occurred as a damage. a. True b. False ANSWER: True 26. The number of persons expected to be reached by a negligent misrepresentation must be limited. a. True b. False ANSWER: True 27. A defendant can be liable for an innocent misrepresentation if the defendant makes a material misrepresentation during the course of trying to close a sale. a. True b. False ANSWER: True 28. Innocent misrepresentation applies to product liability through labels or advertising. a. True b. False ANSWER: True

29. The term nuisance has never been precisely defined by the courts. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 67

Name:

Class:

Date:

30. For purposes of a public nuisance, it is not sufficient that only the plaintiff was injured. a. True b. False ANSWER: True 31. A plaintiff suing on the basis of public nuisance can recover even if the damages the plaintiff suffered are the same as those suffered by the rest of the community. a. True b. False ANSWER: False 32. Some states allow citizens to notify government officials about public nuisances. a. True b. False ANSWER: True 33. Tenants cannot sue on the basis of a private nuisance. a. True b. False ANSWER: False 34. Nuisance consists of an interference with the plaintiff’s right to possession of their property. a. True b. False ANSWER: False 35. A nuisance and a trespass are similar except that a trespass requires that interference with the land must be substantial. a. True b. False ANSWER: False 36. Exposure to unpleasant sounds and odors may constitute substantial interference to justify suit for a private nuisance. a. True b. False ANSWER: True 37. An abnormally sensitive plaintiff will be precluded from recovery under a private nuisance claim. a. True b. False ANSWER: True 38. All courts use a balancing test to determine whether the utility of the defendant’s conduct outweighs the plaintiff’s harm when deciding whether a defendant’s conduct is unreasonable for purposes of a nuisance claim.

Copyright Cengage Learning. Powered by Cognero.

Page 68

Name:

Class:

Date:

a. True b. False ANSWER: False 39. Plaintiffs may seek an injunction but may not recover compensatory damages if they sue for a nuisance. a. True b. False ANSWER: False 40. Assumption of risk and contributory negligence can be raised as defenses to a nuisance. a. True b. False ANSWER: True 41. Courts today treat ―coming to the nuisance‖ as an absolute defense against a claim of nuisance. a. True b. False ANSWER: False 42. Environmental law cases have caused a resurgence in nuisance law cases. a. True b. False ANSWER: True 43. CERCLA authorizes individual states to clean up sites that are contaminated by toxic wastes. a. True b. False ANSWER: False 44. Plaintiffs can recover higher damages and more easily obtain injunctions under CERCLA than via a nuisance claim. a. True b. False ANSWER: False 45. Defendants in a nuisance claim are liable only for the contamination they cause, while under CERCLA, they may be 100 percent liable. a. True b. False ANSWER: True 46. Nuisance claims are clearly advantageous in every respect to CERCLA claims. a. True Copyright Cengage Learning. Powered by Cognero.

Page 69

Name:

Class:

Date:

b. False ANSWER: False 47. To bring a claim for interference with existing contractual relations, a plaintiff must prove the defendant intentionally or negligently caused another to breach a contract with the plaintiff. a. True b. False ANSWER: False 48. The courts are uniform in their refusal to allow an at-will employee to sue for interference with contractual relations. a. True b. False ANSWER: False 49. A defendant need not actively induce a breach of contract to be held liable for interference with contractual relations. a. True b. False ANSWER: False 50. A plaintiff can always recover for pecuniary harm but never emotional harm if the plaintiff sues for interference with contractual relations. a. True b. False ANSWER: False 51. An individual is privileged to breach a contract for the purpose of promoting social interests. a. True b. False ANSWER: True 52. Although a defendant may not interfere with an existing contract for purposes of gaining business for themself, the defendant may do so if only a potential contract exists. a. True b. False ANSWER: True 53. A defendant who convinces a testator to leave the plaintiff out of their will is not liable for interference with contractual relations because no business interest is involved. a. True b. False ANSWER: False 54. To recover for malicious prosecution, the plaintiff must prove only that the proceedings concluded in the plaintiff’s favor, and that the proceedings were instigated without probable cause.

Copyright Cengage Learning. Powered by Cognero.

Page 70

Name:

Class:

Date:

a. True b. False ANSWER: False 55. The proceedings must conclude in the plaintiff’s favor in order for the plaintiff to recover under malicious prosecution. a. True b. False ANSWER: True 56. Plaintiff must show defendant acted out of malice or another reason other than seeking justice for a malicious prosecution case. a. True b. False ANSWER: True 57. If a plaintiff is acquitted, it can be assumed, for purposes of a malicious prosecution claim, that the defendant acted without probable cause. a. True b. False ANSWER: False 58. Proving lack of probable cause in a wrongful institution of civil proceedings case is more difficult than proving lack of probable cause in a malicious prosecution case. a. True b. False ANSWER: True 59. A counterclaim brought for the sole purpose of delaying a proceeding is grounds for a wrongful institution of civil proceedings suit. a. True b. False ANSWER: True 60. Subpoenaing someone for the sole purpose of inducing that person to settle is grounds for an abuse of process suit. a. True b. False ANSWER: True 61. The ―special injury‖ requirement makes it easier for private plaintiffs to bring nuisance claims. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 71

Name:

Class:

Date:

Completion 62. Misrepresentation arose out of the common law action of _______.

ANSWER: deceit 63. The ____________________ element in a private nuisance claim requires that the injuries of a private plaintiff be ―different in kind‖ from the injuries suffered by the general community.

ANSWER: special injury 64. ____________________ authorizes the Environmental Protection Agency to clean up sites contaminated by toxic wastes.

ANSWER: CERCLA 65. Misrepresentation arose out of the common law action of ____________________.

ANSWER: deceit 66. A(n) __________ defect is one not visible to the buyer and a(n) _________ defect is one that is visible or readily discoverable.

ANSWER latent, patent 67. To be held liable for misrepresentation, the defendant must intend to induce the plaintiff’s ____________________ on their misrepresentation.

ANSWER: reliance 68. The law imposes a more demanding obligation of disclosure if there is a(n) ____________________ relationship between the parties than it does if the transaction is carried out at ____________________.

ANSWER: fiduciary, arm’s length 69. In misrepresentation, a plaintiff is not justified in relying on the defendant’s opinion unless ___________________________________, or ___________________________________.

ANSWER: the opinion is made by a disinterested party, the opinion implies no facts incomparable with the opinion exists 70. A salesperson telling a customer that this product is the ―best deal you will ever make‖ is not liable for the statement and is referred to as __________ ANSWER: puffing 71. A plaintiff can measure their damages using either the _________________________, in which the plaintiff asks to be put in the position they were in before the misrepresentation, or the ______________________________, in which the plaintiff asks to be put in the position they would have been in had the misrepresented facts been true.

ANSWER: reliance measure, benefits of the bargain measure 72. One who ____________________ misrepresents something is liable to anyone who can be reasonably expected to learn about the misrepresentation, while one who ____________________ misrepresents something is liable to those whom they intend to reach with the misrepresentation.

Copyright Cengage Learning. Powered by Cognero.

Page 72

Name:

Class:

Date:

ANSWER: intentionally, negligently 73. A defendant who makes false statements during the course of their business or has a pecuniary interest in the transaction at hand will be liable for _________________________.

ANSWER: negligent misrepresentation 74. Cases that involve innocent misrepresentation can be brought on the theory of ____________ or _____________ theory.

ANSWER: express warranty, implied warranty 75. A nuisance can either be a(n) ____________________ nuisance in which the defendant interfered with a right common to the general public, or a(n) ____________________nuisance in which the defendant interfered with the plaintiff’s enjoyment of their land.

ANSWER: public, private 76. A nuisance differs from a trespass in that a nuisance involves interference with the plaintiff’s right to (enjoy or use) their land, while a trespass involves interference with the plaintiff ’s right to ____________________ of their land.

ANSWER: possession 77. To be held liable for nuisance, a defendant’s interference with the plaintiff ’s land must be both ____________________and ____________________.

ANSWER: substantial, unreasonable unreasonable, substantial 78. Both _____________ and ____________ can be raised as defenses in private nuisance claims.

ANSWER: contributory negligence, assumption of risk 79. A plaintiff who _________________________ is one who purchases property knowing in advance that a nuisance exists.

ANSWER: comes to the nuisance 80. ______________ authorizes the EPA to clean up sites that are contaminated by toxic wastes.

ANSWER: CERCLA 81. If a defendant induces another to breach an existing contract with the plaintiff, the plaintiff may have a claim for ___________________________________.

ANSWER: interference with existing contractual relations 82. A person who convinces the state’s attorney to bring charges against another they know to be innocent, can be sued for _________________________. If, however, the person uses the discovery process to induce an opposing party to settle, they may be sued for _________________________.

ANSWER: malicious prosecution, abuse of process 83. A lawsuit brought to merely harass an opponent or extort a settlement when defendant is aware there is no real chance of succeeding is an example of __________________.

Copyright Cengage Learning. Powered by Cognero.

Page 73

Name:

Class:

Date:

ANSWER: wrongful institution of civil proceedings Subjective Short Answer 84. What is fraud?

ANSWER: Intentional misrepresentation corresponds to what was known as ―deceit‖ or ―fraud‖ under the common law.

The elements of intentional misrepresentation are as follows:  The defendant misrepresents something with the intent of inducing the plaintiff’s reliance on that misrepresentation.  The defendant knows that the representation is false or acts with reckless indifference to the truth.  The plaintiff justifiably relies on the defendant’s misrepresentation.  The plaintiff suffers damages stemming from this reliance.

85. What must the plaintiff prove the defendant knew in order to claim intentional misrepresentation?

ANSWER: The defendant knows that the representation is false or acts with reckless indifference to its truth.

86. Name two circumstances in which a plaintiff is not justified in relying on the defendant’s representations.

ANSWER: a. Puffing b. Predictions or opinions c. Opinion of disinterested parties d. Opinion implying facts e. Statement of intentions 87. Discuss an example of innocent misrepresentation?

ANSWER: If a party involved in a sale, rental, or exchange transaction makes a material misrepresentation to the other in an effort to close a deal, they will be liable. A manufacturer makes a representation to a retailer who in turn passes it on to the plaintiff to induce them to buy the product. Product liability kicks in if a seller of goods makes misrepresentations on a label or through public advertising then they are strictly liable for any physical injury that results from such misinformation.

88. What is the difference between a private and a public nuisance?

ANSWER: The essence of a public nuisance is an interference with ―a right common to the general public.‖ A private nuisance, in contrast, is an unreasonable interference with the plaintiff’s use and enjoyment of their land.

89. What is the difference between a nuisance and a trespass?

ANSWER: The difference between a private nuisance and trespass is subtle. A trespass consists of an interference with the plaintiff’s right to possession of their property; nuisance consists of an interference with the plaintiff’s right to enjoy and use their property. Nuisance can occur, therefore, even if nothing physically enters the plaintiff’s property. Furthermore, the fact that the interference must be substantial also differentiates a nuisance from a trespass. Recall that a plaintiff may recover for a trespass even though suffering no substantial harm, as the tort requires only an intentional invasion of the plaintiff’s property. Most conduct that constitutes a trespass typically meets the criteria for a nuisance as well.

90. What balancing test do some courts use in determining whether a defendant’s conduct constitutes unreasonable interference with a plaintiff’s interest?

ANSWER: To determine whether interference is unreasonable, some courts have balanced the utility of the defendant’s conduct against the plaintiff’s harm. In accordance with this test, a plaintiff may be barred from recovery, even Copyright Cengage Learning. Powered by Cognero.

Page 74

Name:

Class:

Date:

though the plaintiff suffered substantial harm, if the utility of the defendant’s conduct exceeds the harm the plaintiff suffered.

91. What are two remedies a plaintiff can seek when alleging a private nuisance?

ANSWER: A plaintiff alleging a private nuisance may seek either compensatory damages or an injunction.

92. Give an example of a plaintiff who ―comes to a nuisance.‖ ANSWER: A homeowner who buys next to a feedlot. A person who purchases a home that is next to a railroad.

93. What are two things a plaintiff who is alleging interference with existing contractual relations most prove?

ANSWER: One commits interference with existing contractual relations by inducing another to breach a contract with the plaintiff. The defendant’s interference must be intentional (negligence is not sufficient) and improper. Several factors are taken into consideration when deciding if a tort has been committed. They include the purpose and motive of the defendant, the means used to create the interference, and the type of interest with which the defendant interferes, as well as the social interest involved in protecting both the defendant’s freedom of action and the contractual interest of the plaintiff.

94. What is the difference between wrongful institution of civil proceedings and abuse of process?

ANSWER: A plaintiff who has been subjected to unwarranted judicial proceedings may sue on the basis of abuse of process. Notice that the plaintiff in these cases was originally the defendant in the cause of action leading to the suit involving the misuse of the legal process.

A defendant whose motives are for some purpose other than bringing the plaintiff to justice and who, without probable cause, institutes criminal proceedings against another commits malicious prosecution.

95. What are two things a plaintiff must prove if they allege malicious prosecution?

ANSWER: a. Proceedings ended favorably for the plaintiff. b. That defendant’s motives were for some purpose other than bringing the plaintiff to justice. c. That the defendant actively participated in instigating the prosecution.

Chapter 11-Strict Liability True / False 1. Strict liability and liability without fault are synonymous terms. a. True b. False ANSWER: False 2. Defendants who engage in particularly dangerous kinds of activities must pay for all damages that result from those activities even if they carry them out in the most careful manner possible. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 75

Name:

Class:

Date:

3. Strict liability is also equivalent to absolute liability. a. True b. False ANSWER: True 4. Under the English common law, animal owners were strictly liable for damages caused by any trespassing animals, including cats and dogs. a. True b. False ANSWER: False 5. The Western states adhere to the English common law in terms of liability for trespassing animals. a. True b. False ANSWER: False 6. “Fencing in” statute states provide an owner is not strictly liable if they attempt to fence in the animals. a. True b. False ANSWER: True 7. “Fencing out” statute states provide owners who properly fence their land have a strict liability claim against those animal trespasses onto their land if they are wild animals only. a. True b. False ANSWER: False 8. Owners of wild animals may be strictly liable for any damages caused by their pets. a. True b. False ANSWER: True 9. An owner of a domesticated animal is strictly liable for injuries caused by an animal the owner knows, or should know, has vicious propensities. a. True b. False ANSWER: True

Copyright Cengage Learning. Powered by Cognero.

Page 76

Name:

Class:

Date:

10. According to the Restatement, an activity may be abnormally dangerous if the risk it creates cannot be eliminated using due care. a. True b. False ANSWER: True 11. If the value of an abnormally dangerous activity outweighs its dangerousness it will not fall under strict liability. a. True b. False ANSWER: False 12. All six factors set forth by the Restatement must be met before an activity may be classified as abnormally dangerous. a. True b. False ANSWER: False 13. The courts have carefully categorized certain activities as abnormally dangerous and have considered fact variations as being essentially irrelevant. a. True b. False ANSWER: False 14. It is possible for a defendant to be liable under strict liability even if they carry out the activity with utmost reasonable care. a. True b. False ANSWER: True 15. Preventing future harm is a strong motivator for those who advocate strict liability. a. True b. False ANSWER: True 16. A defendant is liable for those damages that result from an abnormally dangerous activity, even if those damages do not result from the type of risk that makes the activity abnormally dangerous. a. True b. False ANSWER: False

Copyright Cengage Learning. Powered by Cognero.

Page 77

Name:

Class:

Date:

17. Storage of flammable liquids and disposal of hazardous waste are examples of activities that courts have considered abnormally dangerous. a. True b. False ANSWER: True 18. A defendant is not strictly liable if the harm that occurs results from the plaintiff conducting an abnormally sensitive activity. a. True b. False ANSWER: True 19. Flying on an airplane is not considered an abnormally dangerous activity. a. True b. False ANSWER: True 20. Some courts exempt defendants from strict liability if the harm that occurs is a result of an ―act of God.‖ a. True b. False ANSWER: True 21. Courts are more likely to find proximate cause in cases involving strict liability than in cases involving negligence. a. True b. False ANSWER: False 22. Assumption of risk is a defense to strict liability, but contributory negligence is not. a. True b. False ANSWER: True Completion 23. The term ____________________ is sometimes used synonymously with strict liability although it is a misnomer since some defense to strict liability can be raised.

ANSWER: absolute liability 24. ____________________ statutes exempt animal owners from strict liability if they use fencing to keep their animals on their property, while ____________________ statutes allow property owners who properly fence their property to bring strict liability claims against animal owners whose animals trespass on their land.

Copyright Cengage Learning. Powered by Cognero.

Page 78

Name:

Class:

Date:

ANSWER: Fencing in, fencing out 25. A keeper of a(n) ____________________ animal is strictly liable for damages resulting from dangerous propensities typical of that particular species, while the keeper of a(n) ____________________ animal is strictly liable for damages resulting from a vicious propensity of that particular animal.

ANSWER: wild, domesticated 26. ____________________ is an example of an abnormally dangerous activity.

ANSWER: Fill in with any appropriate activity. (numerous answers) 27. If the value of an activity to the community is ____________ by its dangerousness, it is one of the factors in determining whether an activity is abnormally dangerous.

ANSWER: outweighed 28. A plaintiff, whose mother minks kill their young because they are traumatized by the vibrations created by a blasting operation two miles away, will not be able to recover on the basis of strict liability because the plaintiff will be said to be conducting a(n) _________________________ activity.

ANSWER: abnormally sensitive 29. A plaintiff will probably not be able to recover on the basis of strict liability for flood damage resulting from the overflow of a dam after an extraordinary rainfall because the rainfall will be considered a(n) ____________________.

ANSWER: act of God 30. Courts are more likely to hold strictly liable defendants who conduct the dangerous activity in a(n) __________ populated area and less likely to do so if the activity occurs in a(n) __________ area.

ANSWER: highly, isolated 31. _______________ is a primary goal for those who advocate strict liability in product liability cases.

ANSWER: Preventing future harm 32. A plaintiff who ____________________ will most likely be barred from recovering on the basis of strict liability because, it will be argued, he or she had the opportunity to avoid the danger.

ANSWER: assumes the risk Subjective Short Answer 33. Name two situations in which a pet owner could be strictly liable for damages caused by their pet.

ANSWER: a. The pet is trespassing. b. The pet is wild.

34. Name three factors the courts take into consideration (as suggested by the Restatement) when deciding if an activity is abnormally dangerous.

ANSWER: Any three of the following: a. High degree of risk: ―high degree of risk of some harm to the person, land or chattel of others‖ b. Risk of serious harm: ―likelihood that the harm that results from it will be great‖ Copyright Cengage Learning. Powered by Cognero.

Page 79

Name:

Class:

Date:

c. Cannot be eliminated even by due care: ―inability to eliminate the risk by the exercise of reasonable care‖ d. Not a matter of common usage: ―extent to which the activity is not a matter of common usage‖ e. Inappropriateness: ―inappropriateness of the activity to the place where it is carried on‖ f. Value: ―extent to which its value to the community is outweighed by its dangerous attributes‖ 35. Why are airlines no longer held to a strict liability standard?

ANSWER: Modern safety records no longer warrant classifying flying as an abnormally dangerous activity, and most courts have retreated to a negligence standard in this area. In many states, strict liability continues to apply to ground damage caused by an airplane crash, although an increasing number of states appear to be abandoning that position.

36. Name two situations in which a court would most likely find a lack of proximate cause in a strict liability case.

ANSWER: a. A defendant will not be strictly liable if the harm occurred only because the plaintiff was conducting an ―abnormally sensitive‖ activity. b. Some courts will also relieve defendants of liability if the harm occurred in an unforeseeable manner. An ―act of God,‖ for example, is often enough to relieve a defendant of strict liability.

37. Are the courts more or less likely to find proximate cause in a strict liability case than in a negligence case? Why? ANSWER: Less likely due to the fact that the defendant is without fault.

38. What are the two defenses to strict liability and how do each affect the plaintiff from recovery?

ANSWER: A plaintiff who knowingly, voluntarily, and either reasonably or unreasonably subjects themselves to danger is barred from recovery on the basis of strict liability. They are said to have assumed the risk. However, contributory negligence will not bar a plaintiff from recovery. Full responsibility there will lie with the party who created the abnormal risk.

Chapter 12-Product Liability True / False 1. The courts clearly distinguish between economic loss and property damage. a. True b. False ANSWER: False 2. Liability of recovery for product liability includes negligence, warranty, and contract law. a. True b. False ANSWER: False

3. Manufacturing defects are restricted to man-made products. a. True b. False ANSWER: False 4. Failure to conduct a reasonable inspection of a finished product may hold a manufacturer liable under negligence.

Copyright Cengage Learning. Powered by Cognero.

Page 80

Name:

Class:

Date:

a. True b. False ANSWER: True 5. Sellers of real estate may be liable under negligence. a. True b. False ANSWER: True

6. Design defect claims can be based on either negligence or strict liability analysis. a. True b. False ANSWER: True 7. The key issue in a design defect case based on strict liability is the reasonableness of the manufacturer. a. True b. False ANSWER: False 8. A defendant who relies on a state-of-the-art defense will be absolved of liability if it can show that no reasonable alternative design existed at the time. a. True b. False ANSWER: False 9. If the dangerousness of a product is obvious, the manufacturer will not be required to provide safety devices. a. True b. False ANSWER: False 10. The courts have generally found that automobile manufacturers are legally obligated to design ―crashworthy‖ vehicles. a. True b. False ANSWER: True 11. In determining whether a manufacturer must provide a warning on a product, the courts consider only the likely number and severity of accidents that are likely to occur if such a warning is lacking. a. True b. False ANSWER: False 12. Manufacturers are not to be the insurers of their products. Therefore, they are required to warn only of those dangers they knew of, or should have known of, at the time of sale of the product. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 81

Name:

Class:

Date:

13. A manufacturer may have a post-sale duty to warn if it discovers that a product is hazardous after it is sold. a. True b. False ANSWER: True

14. Manufacturers of component parts may be liable for their negligence but manufacturers who fail to use reasonable care in selecting component parts may not be held liable for their negligence. a. True b. False ANSWER: False 15. If a retailer learns of a defect in a product and fails to warn the consumer, many courts will absolve the manufacturer of liability. a. True b. False ANSWER: True 16. Retailers are under an obligation to inspect any goods they sell. a. True b. False ANSWER: False

17. The privity requirement, which is adhered to in most states today, prevents plaintiffs from suing manufacturers in most cases. a. True b. False ANSWER: False 18. Plaintiffs in negligence cases typically have a hard time recovering for pure economic loss. a. True b. False ANSWER: True 19. When dealing with breach of warranties, plaintiffs usually look to tort law when the damages they sustain involve injury to person and property, and they look to contract law when their injuries are primarily economic in nature. a. True b. False ANSWER: True 20. A plaintiff must show they believed the seller’s representations to be true if the plaintiff is to recover for breach of express warranty. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 82

Name:

Class:

Date:

21. If a plaintiff is a user of a product rather than a purchaser, they cannot recover for breach of an express warranty. a. True b. False ANSWER: False 22. Under the ―sealed container‖ doctrine, retailers are relieved of liability if they sell a product in a sealed container. a. True b. False ANSWER: True 23. To recover under an express warranty, the plaintiff only need to show that the representation made was false. a. True b. False ANSWER: True

24. Implied warranties never apply to real estate transactions. a. True b. False ANSWER: False 25. Privity requirements are inapplicable in cases involving breach of implied warranties. a. True b. False ANSWER: False 26. A plaintiff who is injured and suing under an implied warranty of fitness for a particular purpose must prove the defendant knew of the purpose for which they were purchasing the product. a. True b. False ANSWER: True

27. When given a choice, it is always preferable to sue on the basis of strict liability rather than warranty because strict liability is easier to prove than breach of warranty. a. True b. False ANSWER: False 28. The U.C.C. severely limits what a plaintiff can recover for breach of warranty. a. True b. False ANSWER: False 29. Some feel that strict liability hampers manufacturers in their efforts to meet consumer needs. a. True b. False ANSWER: True 30. Section 402A of the Restatement applies to the provision of services but not sales of products.

Copyright Cengage Learning. Powered by Cognero.

Page 83

Name:

Class:

Date:

a. True b. False ANSWER: False 31. A key inquiry in a strict liability case is determining whether a product is in a defective condition and unreasonably dangerous. a. True b. False ANSWER: True 32. A plaintiff in a strict liability claim must prove that the manufacturer or seller failed to use “due care.” a. True b. False ANSWER: False 33. A defective condition may arise from a foreign object being present in a product and not just the property characteristics. a. True b. False ANSWER: True

34. Many courts have classified blood as an ―unavoidably unsafe‖ product. a. True b. False ANSWER: True 35. The fact that a defendant redesigned the product after the plaintiff’s injury is generally inadmissible. a. True b. False ANSWER: True 36. In a strict liability case, the plaintiff must prove the product was the cause in fact and the proximate cause of the injuries. a. True b. False ANSWER: True

37. Proving proximate cause was one of the key problems in the DES litigation. a. True b. False ANSWER: True 38. Strictly speaking, the doctrine of res ipsa loquitur is inapplicable in strict liability cases, although some of the inferences under that doctrine are allowed to be made. a. True b. False ANSWER: True 39. Strict liability applies to anyone who sells goods except lessors of goods and sellers of real estate.

Copyright Cengage Learning. Powered by Cognero.

Page 84

Name:

Class:

Date:

a. True b. False ANSWER: False 40. Plaintiffs who are bystanders are not allowed to recover on the basis of strict liability. a. True b. False ANSWER: False 41. Pure economic loss is generally not recoverable under strict liability. a. True b. False ANSWER: True 42. Under federal law, manufacturers who provide written warranties are precluded from disclaiming any implied warranties. a. True b. False ANSWER: True 43. To disclaim a warranty, a seller is required only to use language that is conspicuous. a. True b. False ANSWER: False 44. Contributory negligence, but not assumption of risk, is a defense to a strict liability cause of action. a. True b. False ANSWER: False 45. If a plaintiff misuses a product or uses it in an abnormal fashion, defendant may have a valid defense of contributory negligence in a strict liability case. a. True b. False ANSWER: True

46. The courts uniformly apply comparative negligence statutes to strict liability cases. a. True b. False ANSWER: False 47. The statutes of limitations applicable to warranty cases are the same as those applicable to negligence cases. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 85

Name:

Class:

Date:

48. A statute of repose begins to run at the time of the plaintiff’s injury. a. True b. False ANSWER: False 49. Federal preemption can be either implied or field preemption. a. True b. False ANSWER: False 50. The Supreme Court’s rulings in Cipollone greatly clarified the preemption doctrine. a. True b. False ANSWER: False 51. Today, airbag cases are fairly straightforward and easy to litigate. a. True b. False ANSWER: False 52. Plaintiffs in airbag cases have to prove that the installation of airbags was economically and technologically feasible at the time the vehicle was manufactured. a. True b. False ANSWER: True 53. Fortunately for plaintiffs in airbag cases, they never have to show that the absence of an airbag enhanced their injuries. a. True b. False ANSWER: False 54. Class actions help prevent the court system from being overloaded. a. True b. False ANSWER: True 55. Class actions prevent plaintiffs with minimal recovery from being able to sue. a. True b. False ANSWER: False 56. Before a class action can be brought, a court must provide certification of a class that allows one or more members to serve as representatives for the other members of the class. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 86

Name:

Class:

Date:

Completion 57. A state common law tort action cannot be brought if a federal statute expressly or impliedly ____________________ such an action.

ANSWER: preempts 58. Under ____________________ preemption, Congress explicitly states the extent to which its enactments preempt state law.

ANSWER: express 59. The two types of implied preemption are ____________________ and ____________________ preemption.

ANSWER: field, conflict 60. One area of products liability litigation that has been affected by the uncertainty in the preemption doctrine is ____________________ litigation.

ANSWER: airbag 61. The diminution of the value of a product is referred to as ____________________.

ANSWER: economic loss 62. In a design defect case that is based on a negligence standard, the key question is the ______________________________, while in a case based on a strict liability standard, the key question is the ______________________________.

ANSWER: reasonableness of the manufacturer, expectation of consumers 63. Defendants who use a ____________________ defense are arguing that a safer design was not possible at the time they manufactured the product in question.

ANSWER: state-of-the-art 64. Any design defect alleged by a plaintiff must fall into one of three categories: ____________, ______________, or __________ ANSWER: structural defect, absence of safety features, misuse of product

65. The ____________________ theory has been used as the basis for suing cigarette manufacturers.

ANSWER: defective warning 66. The ____________________ requirement, which requires the plaintiff to contract directly with the defendant manufacturer, has largely been abandoned.

ANSWER: privity 67. Unreasonably unsafe products are products that are incapable of being made safe for ___________________.

ANSWER: their intended purpose

68. Causes of action based on breach of warranty are a combination of ____________________ law and ____________________ law.

ANSWER: tort, contract Copyright Cengage Learning. Powered by Cognero.

Page 87

Name:

Class:

Date:

69. Providing consumers with a description of a product is one way of creating a(n) ____________________ warranty.

ANSWER: express 70. A(n) ______________________________ warranties that a good is fit for the ordinary purpose for which such a good is used.

ANSWER: warranty of merchantability 71. Section 402A of the Restatement applies to _________________________ but not to _________________________.

ANSWER: sales of products, provision of services 72. In determining whether a product is in a defective condition and unreasonably dangerous, some courts use the _________________________ test in which they focus on the consumer, while other courts use the ____________________ test in which they focus on the acts of the defendant.

ANSWER: consumer-expectation, risk-utility 73. Liability under product liability can be based one of three theories of recovery: _______________, _______________, or _____________.

ANSWER: negligence, warranty, strict liability 74. Under the UCC, the merchantability warranty is applicable to the sale of _____________, but is not applicable to _______________ and to ____________________.

ANSWER: food and drink, services, real estate transactions

75. An implied warranty can be ____________________ if a product is sold ―as is.‖ ANSWER: disclaimed 76. If the seller of a product represents that a product can be used to fit the specific need of a consumer, an ________________________________________ is created.

ANSWER: implied warranty of fitness for a particular purpose 77. Statutes that limit the time period during which a product liability suit can be brought are called ____________________.

ANSWER: statutes of repose 78. A class action suit cannot be ____________________ until plaintiffs prove there is a common issue of law or fact and provides adequate notice to potential members of the class.

ANSWER: certified Subjective Short Answer 79. Why is it important to distinguish between property damage and economic loss?

ANSWER: The type of loss—personal injury, property damage, or economic loss—also determines whether the plaintiff will select a contract or tort claim.

80. What is the difference between a design defect and a manufacturing defect?

ANSWER: A manufacturing defect results from a deviation in the manufacturing process that causes the item that injures the plaintiff to be different from others manufactured by the defendant. In a design defect case, all products manufactured by the defendant are the same but possess a feature that is unreasonably dangerous; thus, the defect arises from the design.

Copyright Cengage Learning. Powered by Cognero.

Page 88

Name:

Class:

Date:

81. What is a state-of-the-art defense?

ANSWER: Defendants argue that the level of technology existing at the time they made the product precluded them from utilizing a safer design. Although courts generally allow such a defense, defendants relying on this argument will not necessarily be absolved of liability. A jury could conclude, for example, that even though no reasonable alternative design existed at the time, the risk created by producing such an item outweighed its utility.

82. What are the three types of design defects?

ANSWER: a. structural defect b. absence of safety features c. misuse of product

83. How might the defective warning theory be used in relationship to a drug that is determined to have potentially harmful side effects?

ANSWER: Courts look at whether the warnings clearly convey the nature, gravity, and likelihood of the known or knowable risks of the drugs. An advertising or publicity campaign for a drug, however, may dilute the warning to the point that it becomes inadequate.

84. Describe one way in which a seller of a product can make an express warranty.

ANSWER: By alleging that a product possesses certain qualities , it can be made as an affirmation of fact or promise regarding the goods, a description of the goods, or by use of a sample or model of the goods.

85. Describe the two types of implied warranties.

ANSWER: a. Warranty of merchantability – implied if the seller is a merchant in the regular business of selling the kind of goods in question b. warranty of fitness for a particular purpose – created when a seller knows that a buyer wants goods for a particular (noncustomary) purpose and makes a recommendation on which the buyer relies

86. Why might a plaintiff opt for a warranty rather than a strict liability claim?

ANSWER: There are fewer defenses for the defendant, and it would negate any bias the court may have against strict liability.

87. What constitutes a defective condition for purposes of strict liability?

ANSWER: The courts tend to focus on whether the product is in a defective condition unreasonably dangerous. According to the Restatement of Torts, a product is in a defective condition unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. The question is would a reasonable person have put the product into the stream of commerce if they had knowledge of its defective condition. A defective condition can arise not only from the characteristics of the product itself but also from foreign objects contained in the product, or from the way it was packaged or prepared.

88. Give two reasons that justify holding manufacturers strictly liable for defects in their products.

ANSWER: a. They are in the best position to “avoid” defective products. b. They have the financial resources to correct any defects that are found. c. They should internalize the cost of any injuries by incorporating the cost of liability into the cost of the product. d. The sophistication of modern products precludes the average consumer from pinpointing the reason for their injuries.

89. What are four things a plaintiff must prove if they allege strict liability under Section 402A of the Restatement?

ANSWER: a. A product was sold. b. The product was defective. c. The defective product was the cause in fact and proximate cause of the plaintiff’s injuries. d. The defect existed at the time the product left the defendant’s hands. e. The item was manufactured or sold by the defendant.

Copyright Cengage Learning. Powered by Cognero.

Page 89

Name:

Class:

Date:

90. Give an example of an unavoidably unsafe product and explain why it might be classified that way.

ANSWER: Unavoidably unsafe products are those products that are incapable of being made safe for their intended and ordinary use. If the benefits of such products outweigh their risks, the courts will not hold their manufacturers strictly liable for harm coming to the consumers. Experimental drugs exemplify unavoidably unsafe products.

91. How was the market share liability theory used in Sindell v. Abbott Laboratories?

ANSWER: In one of the first DES cases, Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, cert. denied, 101 S. Ct. 285 (1980), the plaintiff was unable to identify the manufacturer responsible for making the DES taken by her mother while the plaintiff was in utero. Sympathizing with the plaintiff’s plight, the court determined that because the plaintiff had sued five of the manufacturers of DES, whom she asserted produced 90 percent of the DES marketed, the burden of proof shifted to the defendants to demonstrate that they could not have supplied the DES that caused the plaintiff’s injuries. Furthermore, the court reasoned that each defendant that failed to make such a showing would be held liable for the proportion of the judgment represented by its share of the DES market.

92. What is the difference between a manufacturing defect and a design defect?

ANSWER: A manufacturing defect results from a deviation in the manufacturing process that causes the item that injures plaintiff to be different from others manufactured by the defendant. In a design defect case, all products manufactured by the defendant are the same but possess a feature that is unreasonably dangerous and thus, the defect arises from the design. Design defect claims can be cast in terms of a negligence or strict liability standard.

93. What two defenses in addition to contributory negligence and assumption of risk can be raised in warranty cases?

ANSWER: a. Comparative negligence b. Statute of limitations/repose 94. How does the preemption doctrine affect product liability litigation?

ANSWER: Under the supremacy doctrine, states are free to act as long as their laws do not conflict with federal law; under the rules of preemption, states lose their power to act at all, regardless of any conflict with federal law.

If Congress has preempted certain types of product liability litigation, the states are without power to pass laws on that subject.

95. Explain a class action lawsuit and why it might be used.

ANSWER: A class action suit is one where representative members of a class sue on behalf of other members of the class. The representative parties act on behalf of everyone that was injured, eliminating the need for each one of those to file an individual suit or be personally involved in the courtroom process. Class actions prevent the court system from being overwhelmed by a myriad of suits. They allow individuals to be represented whose minimal recovery might have otherwise precluded them from finding representation.

Chapter 13-Defamation and Related Torts True / False 1. Defamation is complicated by the First Amendment concerns that have to be balanced against the individual’s right to privacy. a. True b. False ANSWER: True 2. Libel includes communications occurring in physical form, such as computer tapes. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 90

Name:

Class:

Date:

3. Defamation is relatively easy to prove, especially against media defendants. a. True b. False ANSWER: False 4. Radio or television programs are always considered slander since they are orally spoken. a. True b. False ANSWER: False

5. Special harm need not be shown in the case of slander. a. True b. False ANSWER: False 6. Statements alleging that a plaintiff has engaged in criminal conduct fall under slander per se. a. True b. False ANSWER: True 7. Today if the elements of libel are proved, damages are always presumed. a. True b. False ANSWER: False 8. A plaintiff’s reputation must actually be injured in order to prove defamation. a. True b. False ANSWER: False 9. A plaintiff cannot recover for defamation if everyone who hears a defamatory statement believes it to be false. a. True b. False ANSWER: False 10. A plaintiff must prove that the statement was understood by at least one person to refer to the plaintiff. a. True b. False ANSWER: True

11. Defamation can be shown even if the defendant’s reputation is tarnished in the eyes of only a minority of persons in the community. a. True b. False ANSWER: True 12. A statement will not be considered defamatory unless it mentions the plaintiff by name.

Copyright Cengage Learning. Powered by Cognero.

Page 91

Name:

Class:

Date:

a. True b. False ANSWER: False 13. A statement must be subject to at least one reasonable interpretation that is defamatory before a plaintiff can recover for defamation. a. True b. False ANSWER: True 14. A statement that is substantially true cannot be considered defamatory. a. True b. False ANSWER: True 15. Estates of a deceased can sue for defamation on the deceased’s behalf. a. True b. False ANSWER: False

16. Today the defendant bears the burden, for the most part, of proving the truth of their statement. a. True b. False ANSWER: False 17. Corporations, partnerships, and other types of business associations can never be defamed. a. True b. False ANSWER: False 18. Statements that are pure expressions of opinion cannot be defamatory. a. True b. False ANSWER: True 19. The literary context in which a statement is made is taken into consideration when deciding if a statement is fact or opinion. a. True b. False ANSWER: True 20. Statements implying undisclosed facts may be actionable even if they are opinions. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 92

Name:

Class:

Date:

21. A statement is defamatory even if no one other than the plaintiff sees or hears it. a. True b. False ANSWER: False 22. A person who repeats a defamatory statement is liable even if they do not believe the statement is true. a. True b. False ANSWER: True 23. Public officials must show that the defendant acted with malice or ill will before being able to recover for defamation. a. True b. False ANSWER: True 24. A public official is one who has injected themself into a public controversy. a. True b. False ANSWER: False 25. A defendant cannot be strictly liable for a defamatory statement. a. True b. False ANSWER: True 26. A plaintiff can recover for pecuniary but not nonpecuniary losses in a defamation case. a. True b. False ANSWER: False 27. Retraction statutes bar a plaintiff from recovery if the defendant retracts a defamatory statement within a certain time period. a. True b. False ANSWER: True

28. Punitive damages can always be awarded in defamation cases. a. True b. False ANSWER: False 29. All federal officials, and some state officials, have absolute immunity even when their statements are made outside the course and furtherance of their jobs. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 93

Name:

Class:

Date:

30. Reports of court proceedings and legislative hearings are subject to qualified immunity. a. True b. False ANSWER: True 31. Making a defamatory statement for the purpose of gaining a competitive advantage is not privileged. a. True b. False ANSWER: True 32. A qualified privilege cannot be lost even if it is abused. a. True b. False ANSWER: False 33. The status of the plaintiff and the subject matter of the statement are the key features shaping defamation law today. a. True b. False ANSWER: True 34. Defamation cases are some of the easiest cases to win. a. True b. False ANSWER: False 35. The Uniform Correction or Clarification of Defamation Act (CDA) protects media defendants but does nothing for plaintiffs. a. True b. False ANSWER: False 36. Invasion of privacy is one of the original torts dating back to the times of the development of actions in trespass. a. True b. False ANSWER: False 37. Invasion of privacy actually consists of five separate torts. a. True b. False ANSWER: False

38. The mere use of the plaintiff’s name by the defendant, so long as the defendant uses the name for their own pecuniary gain, constitutes appropriation. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 94

Name:

Class:

Date:

39. Reading the plaintiff’s private mail or searching through their bags can be the basis for a claim of unreasonable intrusion. a. True b. False ANSWER: True 40. A murder suspect whose life history is published in the newspapers may have a claim for public disclosure of private facts. a. True b. False ANSWER: False 41. A plaintiff who has grounds to sue for false light may not necessarily have grounds to sue for defamation. a. True b. False ANSWER: True 42. A plaintiff may have grounds for a false light claim if the plaintiff can show that the defendant’s publicity depicted them as being pathetic. a. True b. False ANSWER: True 43. Trade libel is similar to defamation except the defendant’s statement need not ridicule or disgrace the plaintiff. a. True b. False ANSWER: True 44. For trade libel, a plaintiff must show some kind of pecuniary harm. a. True b. False ANSWER: True

45. A defendant who intentionally files a false levy of execution commits slander of title. a. True b. False ANSWER: True 46. Because of the increased traffic on the Internet, it has become increasingly easier for those defamed by statements made online to recover for defamation. a. True b. False ANSWER: False 47. Defamation plaintiffs can easily get behind the anonymity of someone who posts a defamatory message on the Internet by issuing a subpoena to the Internet Service Provider.

Copyright Cengage Learning. Powered by Cognero.

Page 95

Name:

Class:

Date:

a. True b. False ANSWER: False Completion 48. An invasion of the reputation of a group or individuals resulting from slander or libel is referred to as ____________________.

ANSWER: defamation

49. Written defamatory statements are referred to as ____________________, while oral defamatory statements are referred to as ____________________. The latter requires the plaintiff to prove that they suffered some kind of ____________________ unless the plaintiff is able to show that the statement fell into one of the four exception categories of ____________________.

ANSWER: libel, slander, special harm, slander per se 50. If the damages a plaintiff suffers are ____________________ damages, they will not have to prove actual harm.

ANSWER: presumed 51. The four exceptions to the special harm requirement for slander are: ______________, ________________, ________________, and _________________.

ANSWER: plaintiff engaged in criminal conduct plaintiff suffers from some type of communicable disease plaintiff is unfit to conduct their business, trade, or profession plaintiff has engaged in sexual misconduct

52. If the defamatory content of a statement is not apparent unless certain extrinsic facts are made known, a plaintiff will have to show the ____________________ in their pleadings.

ANSWER: innuendo 53. A plaintiff must prove ____________________ in that the statement must be seen or heard by someone other than the plaintiff.

ANSWER: publication 54. According to the ____________________ rule only one defamation can be alleged even if several copies of a book are sold.

ANSWER: single publication 55. If the defendant is a ____________________ or a ____________________, the plaintiff must prove that the defendant acted with ____________________, that is, with knowledge that the statement was false or with reckless disregard for the truth or falsity of the statement.

ANSWER: public official, public figure, actual malice 56. The purpose of a ____________________ statute is to discourage defamation suits by either barring the plaintiff’s recovery if the defendant takes back the defamatory statement or by providing the plaintiff with the opportunity to respond.

ANSWER: retraction Copyright Cengage Learning. Powered by Cognero.

Page 96

Name:

Class:

Date:

57. A plaintiff who successfully proves defamation can recover for ___________ as well as _________ losses.

ANSWER: pecuniary, nonpecuniary

58. Judges, lawyers, parties, and witnesses enjoy an ____________________ privilege for statements made during judicial proceedings, while reports prepared during court proceedings enjoy a ____________________ privilege.

ANSWER: absolute, qualified 59. A statement made to one who has the capacity to act in the public interest, such as a public official, is subject to a ____________.

ANSWER: qualified privilege

60. The ____________________, which consists of four distinct torts, evolved from a law review article written by Samuel Warren and Lewis Brandeis.

ANSWER: right to privacy 61. If the value of a plaintiff’s name is used for a defendant’s financial gain, the plaintiff can sue for ____________________, while if a defendant uses binoculars to monitor a plaintiff’s activities inside the home, the plaintiff can sue for _________________________. If a defendant publishes an article about the plaintiff that makes that plaintiff appear ridiculous, the plaintiff has a potential claim for ____________________, while if a defendant publicizes intimate details of the plaintiff’s life, the plaintiff may have a claim for ______________________________.

ANSWER: appropriation, unreasonable intrusion, false light, public disclosure of private facts 62. If a defendant disparages the property right of another the defendant commits the tort of ____________________, while if the defendant disparages the business of another the defendant commits the tort of ____________________. Both torts fall under the general category of _________________________.

ANSWER: slander of title, trade libel, injurious falsehood Subjective Short Answer 63. Why is defamation a complex tort?

ANSWER: Defamation, which is defined as an invasion of the reputation of a person or group resulting from libel or slander, is a complex tort. Some of its complexity stems from the courts’ struggle to balance freedom of expression against protection of the individual’s reputation. Today the key features that shape defamation law are the status of the plaintiff (public official or public figure versus private individual) and the subject matter of the statement (public issue versus private). These features determine which standard of proof a plaintiff must meet to recover damages.

64. What is the difference between libel and slander?

ANSWER: Defamation encompasses the two related torts of libel and slander (see Exhibit 13–1). Libel refers to written defamatory statements; slander refers to oral statements. Libel encompasses communications occurring in ―physical form‖ (according to many modern courts and the Restatement [Second]). Under this definition defamatory statements on records and computer tapes are considered libel rather than slander. Spoken words that are intended to be written down, such as words dictated to a stenographer, are also categorized as libel. A radio or television program that originates from a written script is considered libel, but the courts do not agree about how to classify a program that is ―ad-libbed.‖ The distinction between libel and slander is sometimes blurred, but it is a significant one. To prove slander a plaintiff must establish that he or she suffered some kind of special harm, meaning harm of a pecuniary (monetary) nature. Loss of friendship and emotional upset are not generally considered to have pecuniary value. However, if a plaintiff is able to prove pecuniary loss, the plaintiff can attach emotional damages to his or her pecuniary loss.

Special harm need not necessarily be proved in the case of libel.

Copyright Cengage Learning. Powered by Cognero.

Page 97

Name:

Class:

Date:

65. Why is it generally easier to prove libel than slander?

ANSWER: With libel you do not need to prove special harm and the libelous statement is in writing. You also have the possibility of presumed damages.

66. Give two examples of slander per se.

ANSWER: Any two of the following: a. The plaintiff engaged in criminal behavior. b. The plaintiff suffers from some type of venereal or otherwise loathsome and communicable disease. c. The plaintiff is unfit to conduct their business, trade, or profession. d. The plaintiff has engaged in sexual misconduct.

67. What are three elements of defamation?

ANSWER: a. Plaintiff’s reputation is harmed or tended to be harmed. b. Statement is reasonably interpreted by at least one person as referring to the plaintiff. c. Statement is false.

68. What is the single publication rule?

ANSWER: Under the single-publication rule most courts hold that an entire edition of a book or periodical should be treated as one publication. Therefore, even if several copies of a book are sold, only one defamation can be alleged.

69. What are two factors a court will take into consideration when deciding whether a statement represents fact or opinion?

ANSWER: a. The more precise the statement is, the more likely it will be considered a fact. b. A statement that is almost impossible to verify is likely to be considered an opinion.

70. Explain what retraction statutes are and why they were created.

ANSWER: Retraction statutes were enacted in a majority of states to discourage defamation suits. They bar a plaintiff from recovery if a defendant retracts a defamatory statement within a certain time period. The Uniform Correction or Clarification of Defamation Act serves as a model and requires that either the plaintiff request a correction or clarification within 90 days of learning of the publication or that the defendant voluntarily make a correction or clarification within the 90 days. Missing out on the 90-day period precludes any losses except actual economic losses. Under this act, the media can act with intentional or reckless disregard toward the truth, immunizing itself from all but economic damages as long as it prints a timely retraction.

Plaintiffs are afforded public correction even when they are unable to prove actual malice, when case law requires such a showing.

71. What was the purpose of the Communications Decency Act of 1996?

ANSWER: This act virtually eliminates all liability in defamation actions in which the plaintiff alleges that the online company is a publisher. If defamation plaintiffs cannot recover from ISPs, they can still sue the individual who posted the defamatory materials but getting behind the anonymity of Internet messages can be extremely difficult.

72. Why is defamation on the Internet likely?

ANSWER: The Internet makes the risk of defamation more likely because it is a global media that is highly accessible and that promotes anonymity.

73. Define ―actual malice.‖ ANSWER: Acting with knowledge of the falsity of one’s statement or with reckless disregard as to the truth or falsity of one’s statement.

74. Why do the courts give less protection to public figures than to those not in the public eye?

ANSWER: In order to encourage national debate on issues of importance.

Copyright Cengage Learning. Powered by Cognero.

Page 98

Name:

Class:

Date:

75. Give an example of an absolute privilege.

ANSWER: Judges, lawyers, parties, and witnesses during judicial proceedings. The statements must bear relation to the matter at issue. Some legislators acting in furtherance of their legislative function during a legislative hearing have absolute privilege. All federal officials, governors, and high-ranking state officials have absolute immunity while acting in their official capacities. No privilege applies to statements issued outside of the course and furtherance of the defendant’s job.

76. Give an example of a qualified privilege.

ANSWER: Reports of public proceedings, such as court cases and legislative hearings, enjoy a qualified privilege of immunity. A statement made to one who has the capacity to act in the public interest, such as a public official, is subject to a qualified privilege. A qualified privilege can be lost if abused.

77. How does the Communications Decency Act protect ISPs from liability for defamation on the Internet.

ANSWER: The CDA of 1996 removed liability for ISPs and other providers when they act in good faith to regulate objectionable content. The impact of the CDA is to virtually eliminate all liability in defamation actions in which the plaintiff alleges that the online company is a publisher. The CDA immunizes interactive computer services from claims based on information posted by a third party. ISPs should not be liable for the exercise of a publisher’s traditional editorial functions. The goal is to encourage service providers to regulate the dissemination of offensive materials and to minimize government interference.

Chapter 14-Vicarious Liability True / False 1. Part of the reason for holding employers vicariously liable is that employers should consider the expense of reimbursing those whom their employees injure as part of the cost of doing business. a. True b. False ANSWER: True 2. Under the doctrine of vicarious liability, an individual is held liable for the unintentional acts of another. a. True b. False ANSWER: False 3. The term “respondeat superior” translates to let everyone be responsible. a. True b. False ANSWER: False

4. An employer is generally liable for the negligent acts of employees committed while they are coming to or leaving work. a. True b. False ANSWER: False 6. An employer is never liable for the intentional torts of an employee. a. True Copyright Cengage Learning. Powered by Cognero.

Page 99

Name:

Class:

Date:

b. False ANSWER: False 7. Courts today generally find employers liable for the acts of employees committed while deviating from their business purpose so long as their deviation is reasonably foreseeable. a. True b. False ANSWER: True 8. An employer is not vicariously liable for acts committed by an employee if the employer had expressly forbidden the commission of such acts. a. True b. False ANSWER: False 9. An employer is not liable if an employee negligently delegates their authority to another person who in turn commits a tort. a. True b. False ANSWER: False 10. If an employer refers to someone as an independent contractor, that label is not dispositive of the actual nature of their relationship. a. True b. False ANSWER: True 11. A court considers method of payment and length of employment in deciding whether an individual is an employee or an independent contractor. a. True b. False ANSWER: True 12. An employer remains liable if they delegate a non-delegable duty to an independent contractor. a. True b. False ANSWER: True 13. An employer is not liable for the negligence of an independent contractor even if the employer is negligent in failing to inspect the independent contractor’s work product. a. True b. False ANSWER: False 14. The control exercised by the employer must go beyond retaining control over the premises and must relate to the actual manner in which the work performed by the contractor is done. a. True Copyright Cengage Learning. Powered by Cognero.

Page 100

Name:

Class:

Date:

b. False ANSWER: True

15. Employers are liable for the negligence of independent contractors hired to carry out activities involving extraordinary risks even if those risks are not recognizable in advance. a. True b. False ANSWER: False 16. If an employer contracts for the performance of an illegal act and the employee does the act, they cannot be liable. a. True b. False ANSWER: False

17. In most jurisdictions today, physicians are vicariously liable for the negligent acts committed by those under the physician’s control. a. True b. False ANSWER: False 18. Bailees are vicariously liable for the negligence of bailors. a. True b. False ANSWER: False 19. Under the family purpose doctrine, the head of the family is vicariously liable for the negligence of anyone who drives their vehicle. a. True b. False ANSWER: False 20. The family purpose doctrine is most often applied in cases involving underinsured minors who are negligent in their driving. a. True b. False ANSWER: True 21. Automobile consent statutes are not applicable when the bailee exceeds the scope of the bailor’s consent even if the deviation is minor. a. True b. False ANSWER: False 22. The omnibus clause in most automobile liability insurance policies has substantially reduced the need for automobile consent statutes. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 101

Name:

Class:

Date:

ANSWER: True 23. An omnibus clause extends insurance coverage to members of the insured’s household and to any person over 18 using the automobile with the insured’s permission as long as the use falls withing the scope of the permission given. a. True b. False ANSWER: False

24. A social trip is a type of joint enterprise. a. True b. False ANSWER: False 25. A joint venturer is vicariously liable for the negligent acts of other members of the joint venture of which they are a member. a. True b. False ANSWER: True 26. In most jurisdictions today, the negligence of a driver is imputed to their passengers. a. True b. False ANSWER: False 27. Under the modern rule, contributory negligence is not imputed unless negligence could also be imputed. a. True b. False ANSWER: True 28. In general, the contributory negligence of a bailee is not imputed to the bailor even when the bailor would be liable as a defendant pursuant to automobile-consent statute. a. True b. False ANSWER: True

29. In wrongful death and loss of consortium claims, the contributory negligence of the injured party is generally not imputed to the plaintiff. a. True b. False ANSWER: False 30. Parents are never liable for the intentional torts of their children. a. True b. False ANSWER: False

Copyright Cengage Learning. Powered by Cognero.

Page 102

Name:

Class:

Date:

31. An employer that delegates repair work to an independent contractor has no liability if that independent contractor negligently injures a business invitee. a. True b. False ANSWER: False Completion 32. Under the doctrine of ______________________________, an employer is vicariously liable for the acts of an employee so long as the employee is acting within the ____________________ and ____________________of their employment.

ANSWER: respondeat superior, scope, furtherance 33. Respondeat superior can apply to _________ torts, ________ torts, and ___________actions.

ANSWER: negligent, intentional, strict liability 34. An employer is not vicariously liable when an employee goes out of the way on a(n) _________ or _________.

ANSWER: frolic or detour

35. When you take your car into the service station for repair, you as the ____________________ are not vicariously liable for the negligence of the service station, which is the ____________________.

ANSWER: bailor, bailee 36. The issue of vicarious liability hinges on the __________ negligence and not the _________ negligence.

ANSWER: employee’s, third-party’s 37. A(n) __________ is considered their own boss.

ANSWER: independent contractor 38. If an employer contracts for the performance of a(n) ______________ they will be vicariously liable for any damages caused by the contractor from that act.

ANSWER: illegal activity

39. Under the ____________________ doctrine, the head of a family is vicariously liable for the negligent acts of members of their family committed while driving the family vehicle; while under a(n) _________________________ statute, the owner of a vehicle is vicariously liable for negligent acts committed by someone who had the owner’s permission to drive the vehicle.

ANSWER: family purpose, automobile consent 40. A(n) ______________ extends insurance coverage to members of the insured’s household and to any person using the automobile with the insured’s permission as long as the use falls within the scope of the permission given.

ANSWER: omnibus clause

41. A ____________________ is created when two or more people share an agreement to carry out a common purpose and have a common pecuniary interest.

ANSWER: joint enterprise 42. In a contributory negligence state, if the negligence of an employee is ____________________ to the employer, the employer will be considered negligent as well.

ANSWER: imputed Copyright Cengage Learning. Powered by Cognero.

Page 103

Name:

Class:

Date:

43. Under the ____________________ exception, one who entrusts work to an independent contractor, but who maintains control over any part of the work, is liable for the physical harm to others caused by the independent contractor’s negligence.

ANSWER: retained control Subjective Short Answer 44. What is the reasoning behind holding employers vicariously liable for the acts of their employees?

ANSWER: The rationale most commonly used to justify this doctrine is that employers should consider the expense of reimbursing those injured by their employees as part of the cost of doing business. As a practical matter, keep in mind that typically the employee is judgment-proof, whereas the employer is the proverbial ―deep pocket.‖ 45. Give two examples of vicarious liability relationships.

ANSWER: Employers/employees, employers/independent contractors, members of joint enterprises, automotive consent statutes, family purpose doctrine.

46. Name two circumstances in which an employer is not vicariously liable for the acts of an employee ANSWER: a. When the employee is not acting within the scope and course of their employment b. When the employee is traveling back and forth to work c. For frolic and detours of the employee 47. Name two circumstances in which an employer is vicariously liable for the acts of an independent contractor.

ANSWER: a. If the employer hires someone that they know will not perform the work safely (such as an individual who has a poor safety record), the employer might be vicariously liable. b. If the employer fails to inspect work after it is done, the employer can be liable even if the injuries stem from the contractor’s negligence.

48. What is the common-law rule regarding the vicarious liability of bailors?

ANSWER: Under the common law majority rule, a bailor is not vicariously liable for the acts of a bailee.

49. Explain the retained control exception of independent contractor nonliability.

ANSWER: The desire is to prevent employers from avoiding liability by hiring independent contractors to carry out their responsibilities. One who entrusts work to an independent contractor but who retains control of any part of the work, is subject to liability for physical harm to others whose safety the employer owes a duty to exercise reasonable care, which is caused by their failure to exercise their control with reasonable care. It is not enough to merely have a right to order the work stopped, inspect progress, or receive reports, There must be such a retention of supervision that the contractor is not entirely free to do work in their own way.

50. What is the family purpose doctrine?

ANSWER: Some courts created a legal fiction called the family-purpose doctrine. Under this doctrine the assumption is made that the driver is carrying out a ―family purpose,‖ making the family head, typically the most financially responsible person in the family, vicariously liable. This doctrine is maintained even though, typically, the driver is using the vehicle on their own behalf. So long as the driver is a member of the family’s household and has permission to use the car, the head of the family is vicariously liable for the driver’s negligent acts.

51. In what type of situations is the family purpose doctrine most likely to be relied on by a plaintiff?

ANSWER: Auto accidents with a minor driver. Anyone injured by the minor will find little compensation in the minor’s compensation in the minor’s coverage and will often be motivated to turn to the parents for relief.

Copyright Cengage Learning. Powered by Cognero.

Page 104

Name:

Class:

Date:

52. What is an automobile consent statute?

ANSWER: These statutes make the owner vicariously liable for negligent acts committed by anyone using the car with the owner’s permission. If the borrower (bailee) of the car exceeds the scope of the owner’s consent, the owner (bailor) is generally not vicariously liable unless the deviation is a relatively minor one. If the bailee in turn lends the car to a third person, the courts are divided in terms of the owner’s liability. In one case a rental agency explicitly forbade customers from allowing anyone else to drive the car.

53. Why are automobile consent statutes no longer as useful today as they once were?

ANSWER: The omnibus clause in most automobile liability insurance policies has substantially reduced the need for automobile-consent statutes. Such clauses extend insurance coverage to members of the insured’s household and to any person using the automobile with the insured’s permission as long as the use falls within the scope of the permission given. Consequently, plaintiffs have no incentive to find liability on the part of the owner, at least up to the policy limits.

54. What are the four elements that must be satisfied in order to have a joint enterprise?

ANSWER: a. An express or implied agreement among members of a group b. Common purpose or goal to be carried out by the group c. Common pecuniary interest in the purpose or goal d. An equal right of each member to control the direction of the enterprise (Restatement)

54. If an employee is involved in an accident while driving a company car, why might the employer not be able to sue the other driver involved in the accident if the rule of contributory negligence is applicable?

ANSWER: The employee’s contributory negligence could bar the employer’s claim.

55. What is the rationale for not imputing a driver’s negligence to a passenger?

ANSWER: That a passenger basically has no control over the acts of the driver of the vehicle in which they are riding. The passenger should not, therefore, be saddled with responsibility for the driver’s negligence. Contributory negligence should not be imputed unless negligence can also be imputed.

56. When might a parent be vicariously liable for the acts of a child?

ANSWER: Some states, in an effort to curb juvenile delinquency, have enacted statutes that hold parents liable for the tortious acts of their children. These torts can involve either personal injury or property damage, but they must be intentional torts. Most such statutes have damage ceilings, which can be as high as several thousand dollars.

Lawsuits based on negligent supervision are rare but have become more visible. Many states have reexamined their parental-responsibility laws. Many states have considered statutes that would hold parents criminally responsible if their children commit crimes using firearms. A parent may be vicariously liable if they encourage the commission of a tortious act or accept benefits from it. A parent who negligently entrusts a dangerous object to a child or who fails to protect others from dangerous tendencies of the child will be held liable.

Chapter 15-Joint Liability True / False 1. If the harm done to the plaintiff can be apportioned, each defendant is jointly and severally liable for the total harm. a. True b. False ANSWER: False 2. The rule regarding joint and several liability is not applicable to concurrent tortfeasors. a. True Copyright Cengage Learning. Powered by Cognero.

Page 105

Name:

Class:

Date:

b. False ANSWER: False 3. If several defendants act in concert to cause the plaintiff injury, but only one defendant directly causes the injury, only that defendant can be held liable. a. True b. False ANSWER: False 4. One defendant can be held responsible for payment of all damages even though their contribution to the plaintiff’s injuries was relatively minor under joint and several liability. a. True b. False ANSWER: True 5. If a plaintiff dies as a result of independent or concerted acts of defendants, each defendant will be held liable for the death since death is not apportionable. a. True b. False ANSWER: True 6. Joint and several liability has been abolished in most states. a. True b. False ANSWER: False 7. Joint and several liability is a question of social policy. a. True b. False ANSWER: True

8. A plaintiff is entitled to only one satisfaction of a claim. a. True b. False ANSWER: True 9. Under the majority rule, contribution is allowed for intentional tortfeasors. a. True b. False ANSWER: False 10. A defendant that can raise a legitimate defense is not subject to contribution. a. True b. False ANSWER: True 11. Under the common law, the release of one defendant resulted in the release of all defendants.

Copyright Cengage Learning. Powered by Cognero.

Page 106

Name:

Class:

Date:

a. True b. False ANSWER: True 12. Today, a plaintiff’s intent to reserve their rights to sue nonreleased defendants can be proved using verbal statements. a. True b. False ANSWER: True 13. A plaintiff who enters into a covenant not to sue surrenders their claim. a. True b. False ANSWER: False 14. The majority rule states that all tortfeasors are released if the release is silent regarding their continuing liability. a. True b. False ANSWER: True

15. The traditional common law rule prohibiting contribution from a released defendant inhibited plaintiffs from settling. a. True b. False ANSWER: False 16. Plaintiffs are often discouraged from entering into a release in case their injuries turn out to be graver later on. a. True b. False ANSWER: True

17. Mary Carter and Gallagher agreements allow defendants to circumvent the no-contribution rule. a. True b. False ANSWER: True 18. Mary Carter and Gallagher agreements existence and terms should always be disclosed to the trier of fact. a. True b. False ANSWER: True 19. Mary Carter and Gallagher agreements promote settlement but are also potentially abusive to non-agreeing defendants. a. True b. False ANSWER: True 20. If a retailer seeks to be indemnified by a manufacturer, the retailer is referred to as an indemnitor.

Copyright Cengage Learning. Powered by Cognero.

Page 107

Name:

Class:

Date:

a. True b. False ANSWER: False 21. Settling defendants to a Mary Carter agreement benefit by eliminating the risk of paying more than the amount agreed upon. a. True b. False ANSWER: True

22. Indemnification involves a sharing of liability. a. True b. False ANSWER: False 23. The purpose of indemnification is to avoid the unjust enrichment of tortfeasors. a. True b. False ANSWER: True 24. A sheriff who wrongfully seizes another’s property will be indemnified by the governmental agency for which they work as long as they reasonably believe the orders they receive are lawful. a. True b. False ANSWER: True 25. Under the doctrine of equitable indemnity, the amount of indemnity is dependent on the relative fault of the tortfeasors. a. True b. False ANSWER: True 26. Joint and several liability helps ensure that plaintiffs are fully compensated. a. True b. False ANSWER: True 27. As a result of joint and several liability, defendants may be forced to shoulder harm caused by others. a. True b. False ANSWER: True

28. Plaintiffs benefit from Mary Carter and Gallagher agreements because they can pressure defendants into cooperating and settling with them and do not have to deal with the ―empty chair‖ defense. a. True Copyright Cengage Learning. Powered by Cognero.

Page 108

Name:

Class:

Date:

b. False ANSWER: True 29. Under the provisions of a Mary Carter or Gallagher agreement, a defendant may end up paying nothing even if they are found liable. a. True b. False ANSWER: True Completion 30. Two or more persons who act in concert to intentionally or negligently harm another are called ____________________ tortfeasors. If the tortfeasors act independently to cause the plaintiff injury, they are called ____________________ tortfeasors.

ANSWER: joint, concurrent 31. If a loss is indivisible, joint tortfeasors are _________________________ liable in that they are wholly responsible for the entire loss suffered by the plaintiff.

ANSWER: jointly and severally 32. Under the rule of ________ the tortfeasors act together whereas ______________ act independently but their combined acts cause the plaintiff’s injuries.

ANSWER: joint tortfeasors concurrent tortfeasors 33. Under the rule of __________________, each defendant can be held responsible for the entire harm or any designated portion of the harm.

ANSWER; joint and several liability 34. The rule of joint and several liability does not apply if the harm can be ______________.

ANSWER: apportioned

35. A plaintiff is entitled to only one ____________________ of their judgment in that the plaintiff can collect only once.

ANSWER: satisfaction 36. A defendant who pays more than their pro-rata share of the damages is entitled to ____________________ from the other defendants.

ANSWER: contribution 37. Under the common law, plaintiffs often opted to enter into a(n) _________________________ if they wanted to settle with a defendant rather than a(n) ____________________ because entering into the latter resulted in absolving all the defendants of liability.

ANSWER: covenant not to sue, release 38. A defendant who enters into a(n) ____________________ agreement agrees to guarantee the plaintiff a certain amount of money if the plaintiff loses or recovers less than a certain amount.

ANSWER: Mary Carter or Gallagher Mary Carter Gallagher Copyright Cengage Learning. Powered by Cognero.

Page 109

Name:

Class:

Date:

39. When a party ____________________ another tortfeasor by assuming total financial responsibility for that tortfeasor, they assume the role of a(n) ____________________.

ANSWER: indemnifies, indemnitor 40. The right to indemnity arises out of the law’s attempt to avoid __________________ ANSWER: unjust enrichment unjust enrichment of tortfeasors 41. Traditionally, indemnity was a(n) __________________ situation requiring the indemnitor pay the indemnitee the full amount that the indemnitee paid the plaintiff.

ANSWER: all or nothing 42 .Under the doctrine of _________________, the amount of indemnity is dependent on the relative fault of the tortfeasors.

ANSWER: equitable indemnity

Subjective Short Answer 43. What is the significance of two or more tortfeasors being found jointly and severally liable?

ANSWER: Under the rule of joint and several liability, each defendant can be held responsible for the entire harm or any designated portion of the harm. Although a plaintiff may recover from one or all of the joint tortfeasors, the plaintiff can recover only once for the total damages.

44. What social policy justifies the retention of the doctrine of joint and several liability?

ANSWER: Without joint and several liability, the injured plaintiff bears the loss. Although society pays less, some plaintiffs will not be fully compensated. If joint and several liability is in effect, the loss is assigned to other liable defendants, who routinely pass on their added costs to society as a whole.

45. Why have some states abolished the doctrine of joint and several liability?

ANSWER: Joint and several liability has been abolished in some states, primarily because of the concern that the doctrine is used to go after the ―deep pocket‖ defendant, who may actually be responsible for only a minimal portion of the harm. It is a matter of social policy. Where society wants to assign the burden when a liable party cannot pay damages. If there is no joint and several liability, the plaintiff bears the burden of the loss.

46. What must be shown before tortfeasors can be held jointly and severally liable?

ANSWER: Two or more persons who act in concert to produce a negligent or intentional tort are called joint tortfeasors.

They are jointly and severally liable in that they are totally liable for the entire loss suffered by the plaintiff if that loss is indivisible. A loss that cannot be apportioned is considered indivisible. One defendant can be held responsible for payment of all damages even if their contribution to the injuries was relatively minor.

47. Why might a defendant ask for contribution?

ANSWER: To reduce the amount of damages the defendant might otherwise have to pay 48. What is the reasoning behind allowing contribution?

ANSWER: The justification underlying contribution is that one tortfeasor should not be saddled with all the damages while others are allowed to escape without any responsibility. Typically allowed for negligent tortfeasors it is often denied for intentional tortfeasors. Contribution hinges on joint liability.

49. What is the difference between a release and a covenant not to sue?

ANSWER: A plaintiff who enters into a release surrenders their claim; a plaintiff who enters into a covenant not to sue does not surrender their claim but agrees that they will not sue on it. If the plaintiff later reneges on a covenant not to sue and decides to sue, the defendant with whom the plaintiff entered into the covenant will have a counterclaim for breach of contract.

Copyright Cengage Learning. Powered by Cognero.

Page 110

Name:

Class:

Date:

50. Describe a Mary Carter agreement.

ANSWER: Under these agreements, a defendant agrees to guarantee a plaintiff a certain amount od money if the plaintiff loses or recovers less than a stated amount. In return, the plaintiff agrees to refund part of the defendant’s payment in the event of a verdict against the defendant in excess of a stated amount. The important feature is that the contracting defendant although still a party to the case and usually a participant at the trial benefits by the size of the judgments against the other defendants. A typical Mary Carter agreement also prohibits the plaintiff from settling with nonagreeing defendants for an amount less than the guaranteed amount without agreeing defendant’s consent. Plaintiffs benefit from these agreements because they pressure defendants who have a substantial interest in a sizeable plaintiff’s recovery to cooperate with the plaintiff throughout discovery and the trial. The plaintiff is obtaining security by being guaranteed payment. Defendants benefit by eliminating the risk of paying more than the amount agreed on. The cost of the litigation is reduced.

51. Describe a situation in which one party might indemnify another.

ANSWER: When one tortfeasor accepts total financial responsibility for another tortfeasor, they are said to have indemnified that other tortfeasor. The party against whom indemnification is sought is referred to as an indemnitor and the party seeking to be indemnified is an indemnitee.

52. What is the difference between indemnification and contribution?

ANSWER: Indemnification can be distinguished from contribution in that contribution involves a sharing of liability, whereas indemnification involves a shift of liability from one tortfeasor to another.

Chapter 16-Tort Reform True / False 1. Progressive Era reforms opted for changes in the law that would protect defendants. a. True b. False ANSWER: False 2. Classical tort reformers sought the advancement of laws that were aimed at deterring potential tortfeasors from engaging in risky behavior. a. True b. False ANSWER: True 3. The insurance industry has accused the plaintiff-oriented tort system of making it impossible to predict risks and set prices. a. True b. False ANSWER: True 4. Today’s tort reformers are more in alignment with the thinking of the Progressive Era reformers than with that of the classical tort reformers. a. True b. False ANSWER: False 5. The concepts of fault and contributory negligence are examples of the perceived plaintiff-orientation of the law.

Copyright Cengage Learning. Powered by Cognero.

Page 111

Name:

Class:

Date:

a. True b. False ANSWER: False 6. Comparative negligence has allowed recovery by more plaintiffs who would have been excluded by contributory negligence. a. True b. False ANSWER: True 7. Abolishing privity requirements has put a restriction on the scope of suits for tort liability. a. True b. False ANSWER: False

8. The evidence clearly shows that Americans are more litigious than other nationalities and that they are more litigious today than at any other time in history. a. True b. False ANSWER: False 9. Most of the data used by those urging tort reform arises out of the federal courts even though most civil litigation occurs in the state courts. a. True b. False ANSWER: True 10. An increase in court filings does not necessarily mean that society has become more litigious. a. True b. False ANSWER: True 11. Statistics indicate an increase in both larger and smaller awards in recent years. a. True b. False ANSWER: True 12. A clear statistical showing of an increase in jury awards would definitively demonstrate that the jury system is out of control. a. True b. False ANSWER: False 13 Defensive medicine has come about as a result of increased tort liability. a. True b. False ANSWER: True

Copyright Cengage Learning. Powered by Cognero.

Page 112

Name:

Class:

Date:

14. The focus of defensive medicine is always what is best for the patient. a. True b. False ANSWER: False

15. There is undisputed evidence that the number of capricious and needless claims filed against doctors has steadily increased over the last decade. a. True b. False ANSWER: False 16. The oft-cited statistic that the average products liability verdict is over $1 million is questionable. a. True b. False ANSWER: True 17. Some evidence exists to support the proposition that tort reform will increase employment and productivity. a. True b. False ANSWER: True 18. The objective of tort reformers is to curb what is perceived as unduly high damage awards and reduce the number of claims filed. a. True b. False ANSWER: True 19. The Common Sense Reform bills were introduced by the Democrats to restrict the tort reform process. a. True b. False ANSWER: False 20. Jury verdicts for compensation for bodily harm are inherently unpredictable. a. True b. False ANSWER: True 21. Tort reform that restricts economic damages is generally not favored by the courts. a. True b. False ANSWER: True 22. Historically, punitive damages have been used to help alleviate the inequity between the powerful and the powerless. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 113

Name:

Class:

Date:

23. Some feel that putting caps on punitive damages will encourage companies to produce defective products. a. True b. False ANSWER: True 24. Most studies conducted by agencies such as the RAND Institute indicate that the frequency and magnitude of punitive damage awards have increased tremendously nationwide over the last two decades. a. True b. False ANSWER: False 25. The American College of Trial Lawyers recommends that no caps be placed on punitive damage awards. a. True b. False ANSWER: False 26. Oklahoma’s new Tort Reform laws divide punitive damage awards into three categories. a. True b. False ANSWER: True 27. Some states have put a cap on the amount of punitive damages that are allowed. a. True b. False ANSWER: True

28. Some states award punitive damages to the state rather than the plaintiff. a. True b. False ANSWER: True 29. The excessive fines clause of the Eighth Amendment does not apply to fines imposed by the government. a. True b. False ANSWER: True 30. Under the due process clause, a punitive damage award may be found to be excessive. a. True b. False ANSWER: True 31. BMW of North America, Inc. v. Gore provides clear guidance to the lower courts in reference to the assessment of the constitutionality of punitive damage awards. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 114

Name:

Class:

Date:

32. Requiring plaintiffs to relinquish punitive damage awards to a third party would help discourage plaintiffs from bringing frivolous claims. a. True b. False ANSWER: True 33. The Progressive Era reformers denounced joint and several liability as the ―deep pockets‖ theory. a. True b. False ANSWER: False 34. Almost every state retains the doctrine of joint and several liability today. a. True b. False ANSWER: False 35. Under the doctrine of joint and several liability, nominally culpable defendants can be held wholly responsible for the plaintiff’s damages. a. True b. False ANSWER: True 36. The abolition of joint and several liability clearly leads to a decrease in insurance costs. a. True b. False ANSWER: False 37. In actual practice, joint and several liability is seldom relied on. a. True b. False ANSWER: True 38. Most states that have adopted comparative negligence have modified their joint liability doctrine. a. True b. False ANSWER: True 39. Tort reformers are seeking ways to inhibit plaintiffs from filing lawsuits with the sole purpose of inducing defendants to settle to avoid litigation. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 115

Name:

Class:

Date:

40. The British rule requires the loser in a lawsuit to pay all or part of the winner’s attorneys’ fees. a. True b. False ANSWER: True 41. The crisis in the insurance industry in the mid-1980s was clearly caused by an increase in tort lawsuits. a. True b. False ANSWER: False 42. Many punitive damage awards are reversed or reduced in the post-verdict period. a. True b. False ANSWER: True 43. Jurors rarely award punitive damages, and their awards are usually modest. a. True b. False ANSWER: True

44. Research clearly indicates that malpractice claims have induced an increase in the practice of defensive medicine. a. True b. False ANSWER: False

45. Tort plaintiffs prevail in most cases jurors hear. a. True b. False ANSWER: False 46. The average award for tort plaintiffs is greater than the actual damages they suffered. a. True b. False ANSWER: False 47. There is no evidence that products are any safer as a result of tort litigation. a. True b. False ANSWER: False 48. States that have repealed joint and several liability show an increase in tort litigation. a. True Copyright Cengage Learning. Powered by Cognero.

Page 116

Name:

Class:

Date:

b. False ANSWER: True

49. Punitive damages are more likely to be awarded by judges than by jurors. a. True b. False ANSWER: True 50. Punitive damages are awarded more often in personal injury cases than in business and contract disputes. a. True b. False ANSWER: False Completion 51. The ____________________ reformers focused on the goal of deterring potential tortfeasors, while the ____________________ focused on properly compensating plaintiffs.

ANSWER: classical, modern reformers 52. The institution of comparative negligence and no-fault, the relaxation of causation requirements, and the abolition of privity are all examples of the _________________________ of the law according to tort reforms.

ANSWER: plaintiff-orientation 53. Most civil litigation takes place in __________ courts.

ANSWER: state

54. Some blame increased tort liability for the practice of ____________________ medicine by some doctors.

ANSWER: defensive 55. The _________________________ bills, initiated by the Republican party, included a variety of tort reform measures, including limitations on punitive damages and reformation of product liability rules.

ANSWER: Common Sense Reform 56. Those who argue that punitive damages are a windfall to the plaintiff, suggest that punitive damages be awarded to the ____________________ rather than the plaintiff.

ANSWER: state 57. The ____________________ reformers endorsed the doctrine of joint and several liability, while the ____________________ reformers denounced it.

ANSWER: Progressive Era, classical 58. Some courts have required plaintiffs to give back a portion of their punitive award under the use of _________.

ANSWER: remittur

59. The _________________________ rule is under attack today because legal sentiment no longer favors double recovery.

Copyright Cengage Learning. Powered by Cognero.

Page 117

Name:

Class:

Date:

ANSWER: collateral source 60. Most states that have adopted ____________ modified ___________ so that only defendants whose fault was relatively large in comparison to the plaintiff were jointly liable.

ANSWER: comparative negligence, joint liability

61. Rule 11 of the Federal Rules of Civil Procedure has been used as a means for _________________________.

ANSWER: sanctions for frivolous lawsuits 62. Under the ____________________ rule, losers in a lawsuit must pay all or part of the winners’ attorneys’ fees.

ANSWER: British Subjective Short Answer 63. What are four goals of the tort system?

ANSWER: Any four of the following: a. The tort system is designed to compensate victims. b. Tort law serves a deterrent function, providing individuals with an incentive to act in socially responsible ways. c. Tort law spreads the risk of injury among members of society. By incorporating the costs of this social ―insurance‖ into the costs of goods and services, all are protected from the expenses of catastrophic loss. d. Justice is served when victims are made whole. Restoring victims to the positions in which they would have been but for the defendant’s wrong serves the collective conscience. e. Tort law exposes corruption, incompetence, and a variety of other forms of misconduct. Behaviors that might otherwise have escaped public attention are brought into the limelight of public scrutiny and rectified.

64. How did the goal of the Progressive Era reformers differ from the goal of the classical reformers?

ANSWER: After World War I, in the Progressive Era of tort reform, legal commentators were primarily concerned with

plaintiffs being adequately compensated. Because at the time the tort system tended to protect defendants’ interests, reformers opted for changes in the law that were plaintiff-oriented, such as workers’ compensation and strict liability.

Classical tort reformers sought the repeal of any rules that were not aimed at deterring potential tortfeasors from engaging in risky behavior. In particular, they sought to eliminate any rules they viewed as being particularly harsh toward defendants.

65. What four problems do tort reformers focus on today?

ANSWER: a. The law’s plaintiff orientation b. The litigiousness of society c. The excessiveness of jury verdicts d. The inhibition of medical and business practices

66. Explain, using specific examples, why tort reformers believe the tort system is plaintiff-oriented.

ANSWER: Specific examples of plaintiff orientation singled out for blame are the expansion of liability to include nofault liability, the relaxation of causation requirements, the adoption of comparative negligence, and the abolition of privity.

67. Refute the claim that Americans are overly litigious.

ANSWER: Between 1989 and 1997 tort filings at the state level dropped 9 percent, although contract suits went up 9 percent between 1995 and 1997. Similarly, a 1995 study reported that the number of tort cases filed in state courts remained stable between 1987 and 1992 and then fell in 1993. Interestingly, between 1984 and 1994 Copyright Cengage Learning. Powered by Cognero.

Page 118

Name:

Class:

Date:

civil cases rose 24 percent, while criminal cases rose 35 percent, juvenile cases 59 percent, and domestic relations cases 65 percent.

In 2001 state courts processed over 100 million cases, out of which 17.1 million were civil cases. Tort cases accounted for 67 percent of the civil cases. Clearly, criminal cases, not tort cases, dominate court calendars and resources.

68. Discuss the difficulty with finding and relying on reliable statistics for jury awards.

ANSWER: Plaintiffs prevail in fewer than half of the cases that juries hear. The average jury award is generally less than the actual losses suffered by plaintiffs. When there are large awards, it is usually for business litigation cases and not tort cases. Most statistics do not poll jurors and do not know jurors’ rationales. The statistics may simply reflect a random fluctuation rather than an actual statistical trend. Increases in jury awards may reflect the types of cases attorneys are bringing in to the courts. Even if jury awards are on the increase, the reasons behind the increase must be explored before one can conclude that the system is out of control.

69. Name three changes some people recommend should be made with regard to punitive damages.

ANSWER: Any three of the following: 1. Critics have warned that punitive damages either do not deter at all or lead to overdeterrence, as in the case of manufacturers who are overly cautious to avoid liability and thus fail to develop new and useful products for fear of potential litigation.

2. Critics have also charged that punitive damages lead to excessive litigation by plaintiffs who hope that defendants wishing to avoid the expense and risk of litigation will settle.

3. Some argue that plaintiffs unfairly benefit from a windfall of monies intended to punish tortfeasors. This windfall encourages even more litigious behavior.

4. Punitive damages have been criticized for hampering business by increasing the cost of insurance. In the medical arena, critics claim that punitive damages victimize doctors serving socially useful functions and inhibit doctors as a group from taking risks.

70. What evidence suggests some of the criticisms presented in question 7 may be unfounded?

ANSWER: A study by the RAND Institute for Civil Justice indicated that the frequency and magnitude of punitivedamage awards changed little from 1962 to 1987. Furthermore, the General Accounting Office examined data from five states from 1983 to 1985 and concluded that punitive-damage awards were not excessive.

Studies conducted by the Bureau of Justice Statistics and the National Center for State Courts in the nation’s seventy-five largest counties concluded that punitive damages are awarded in only 3.3 percent of all cases and that judges were more likely than juries to award them. (Judges awarded punitive damages 7.9 percent of the time while juries awarded them 2.5 percent of the time. The median damage awarded by judges was $75,000; the median jury award was $27,000.)

A review of nine empirical studies on punitive damages reveals the following: (1) punitive damages are awarded most frequently in intentional-tort cases and business and contract disputes rather than in personal injury litigation; (2) roughly half of all punitive-damage awards are reversed or reduced in the post-verdict period, with the largest awards having the highest post-verdict mortality rate; (3) the South accounts for more than 50 percent and the Western states for about 20 percent of non-asbestos punitive-damage awards; (4) between 1965 and 1990 Texas led the nation with fifty-one punitive damages verdicts, whereas six states (Louisiana, Michigan, Nebraska, New Hampshire, North Dakota, and South Dakota) awarded no punitive damages in any personal injury or product liability case during that same time period; (5) punitive damages peaked in most jurisdictions between 1981 and 1985; (6) juries award punitive damages infrequently (in only about 5 percent of cases), and the amounts are usually modest; and (7) five states account for almost half of all punitive damages awarded in medical malpractice litigation, whereas eleven states did not have a single punitive-damage verdict in a medical malpractice case from 1963 to 1993.

71. Describe a typical statute that caps punitive damages.

ANSWER: To illustrate, under Indiana’s new laws, punitive damages are capped at the greater of $50,000 or three times the compensatory damages. New Jersey’s cap is the greater of $350,000 or five times the compensatory damages, except for particularly abhorrent offenses such as drunk driving or child molestation. The American College of Trial Lawyers itself has recommended that the recovery of punitive damage awards be limited to Copyright Cengage Learning. Powered by Cognero.

Page 119

Name:

Class:

Date:

the greater of twice the amount of compensatory damages or $250,000.

72. Under what circumstances might a punitive damage award be unconstitutional?

ANSWER: The Supreme Court concluded that punitive awards could violate the due process clause if they are ―grossly excessive.‖ 73. Suggest an alternative to punitive damage caps.

ANSWER: Some scholars suggest (as some states, such as Alabama, are already doing) that plaintiffs should be required to relinquish punitive-damage awards to a third party, such as the state. Doing so would discourage plaintiffs from bringing meritless suits. Relinquishment would address the criticism that punitive damages are windfalls to plaintiffs.

74. What two conflicting objectives dominate discussions of joint and several liability?

ANSWER: a. Proponents of the doctrine believe it dispersed losses among defendants rather than plaintiffs and provided plaintiffs with full compensation for their injuries. b. Opponents (Classical) reformers labeled joint and several liability the “deep-pocket” theory, meaning that it allowed plaintiffs to go after defendants with maximum financial resources even if they had minimal culpability and claimed that this practice was patently unfair.

The first objective is to hold defendants liable only for their proportionate share of fault. The second objective is to compensate plaintiffs fully for their injuries.

75. How has comparative negligence affected the joint and several liability issue.

ANSWER: Comparative negligence modified joint liability so that only defendants whose fault was relatively large in comparison to the plaintiff were jointly liable. It appears more reasonable for the legislature to have intended to related duty to pay to the degree of fault. Any other interpretation destroys the fundamental conceptual basis for the abandonment of contributory negligence.

76. Discuss the concept of frivolous lawsuits and how it has changed.

ANSWER: In the Progressive Era, the notion of frivolous lawsuits was foreign to legal scholars, because the common law rules tended to be prodefendant. Pretrial screening mechanisms made it unlikely that non-meritorious claims would survive. As reforms led to the liberalization of tort rules, classical reformers observed that some plaintiffs were filing claims with the primary intent of inducing defendants to settle in order to avoid the costs of litigation. Because of this, insurance claims and premiums escalated. Reformers looked to Rule 11 of the Federal Rules of Civil Procedure which allows sanctions to be issued against parties who file frivolous lawsuits. The Common Sense Reform Bills also proposed adoption of the British Rule which requires that losers in a lawsuit pay all or part of the winner’s attorney fees. This rule is intended to discourage plaintiffs from bringing claims they are likely to lose and to discourage defendants from settling frivolous claims.

Chapter 17-Automobile Insurance True / False 1. Types of automobile insurance are fault insurance, no fault insurance, and partial fault insurance. a. True b. False ANSWER: False 2. In a split-limit coverage policy, each individual may recover a set amount of damages with a total amount available for damages independent of the total number of people injured. a. True b. False ANSWER: True 3. Under an umbrella policy, the insurer pays the full limits of its coverage at the same time the first insurer pays the full limits.

Copyright Cengage Learning. Powered by Cognero.

Page 120

Name:

Class:

Date:

a. True b. False ANSWER: False 4. A court will call for reformation of a policy if the policy does not provide for the minimum required statutory coverages. a. True b. False ANSWER: True

5. UIM coverage stands for uninsured motorist coverage. a. True b. False ANSWER: False 6. Secondary coverage applies to those situations where the insured owns more than one vehicle. a. True b. False ANSWER: False 7. An insured is said to attempt to ―stack‖ policies when they have more than one policy covering the same event. a. True b. False ANSWER: False 8. An insured has the right of subrogation against third parties. a. True b. False ANSWER: False 9. Liability, UM, and UIM coverage is required in ―fault‖ states. a. True b. False ANSWER: False 10. Split-limits coverage providing $15,000 per person, $30,000 per accident, and $10,000 for property damage would be written as $15,000/$30,000/$10,000. a. True b. False ANSWER: True 11. An umbrella policy provides coverage for only those damages resulting from windstorm, rainstorm, hailstorm, or snowstorm. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 121

Name:

Class:

Date:

12. Money received from medical payment coverage can never be used to offset any other funds that the insured might recover. a. True b. False ANSWER: False 13. There is no time limit in which to recover medical expenses after an accident. a. True b. False ANSWER: False 14. If a coordination of benefits provision is present, there will be no double recovery allowed. a. True b. False ANSWER: True

15. Collision coverage provides for reimbursement for repair of, or replacement of, a vehicle. a. True b. False ANSWER: True 16. Miscellaneous coverage is for things like food, lodging, and other expenses if a person’s car breaks down. a. True b. False ANSWER: False

17. Comprehensive coverage provides reimbursement for losses to a vehicle, or its contents resulting from causes other than a collision. a. True b. False ANSWER: True 18. An uninsured motorist is always a motorist who has no policy of liability insurance whatsoever. a. True b. False ANSWER: False 19. The right of subrogation allows an insurer to institute suit against the responsible third party in the name of the insured to collect amounts paid by the insurer to the insured. a. True b. False ANSWER: True 20. An insured can get reimbursement for damage to the windshield of their vehicle through their comprehensive coverage. a. True b. False Copyright Cengage Learning. Powered by Cognero.

Page 122

Name:

Class:

Date:

ANSWER: True 21. Most states do not require that a vehicle owner have liability insurance to drive the vehicle on public roadways. a. True b. False ANSWER: False 22. Most states require that a vehicle owner maintain uninsured motorist coverage on their vehicle in order for that person to lawfully drive on public roadways. a. True b. False ANSWER: True 23. The insurance coverage for the driver of the vehicle is said to be the primary coverage for the vehicle if the driver is not the owner. a. True b. False ANSWER: False 24. Most medical payment, uninsured, and underinsured motorist coverages require arbitration in the event of a dispute. a. True b. False ANSWER: True 25. Purchasing insurance coverage above the mandatory minimum limits for liability, uninsured, and underinsured motorist coverages is a waste of money. a. True b. False ANSWER: False 26. An insurer can terminate a policy if a driver is found to be driving while intoxicated. a. True b. False ANSWER: True

27. All states today have some form of a no-fault system. a. True b. False ANSWER: False 28. In a no-fault system, an injured insured does not retain the right to sue for intentional injuries or for injuries caused by intoxicated drivers. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 123

Name:

Class:

Date:

29. In some states, an injured insured has a right to sue the responsible party if the damages exceed a particular amount. a. True b. False ANSWER: True 30. Insureds cannot be required by statute to purchase minimum amounts of benefits. a. True b. False ANSWER: False 31. The no-fault experiment has not been particularly successful in some states. a. True b. False ANSWER: True 32. In some ways, the no-fault system closely parallels the workers’ compensation system. a. True b. False ANSWER: True 33. Some have proposed prohibiting uninsured motorists from recovering damages they incur. a. True b. False ANSWER: True 34. The no-fault system is a very stable system. a. True b. False ANSWER: False 35. Some states are prevented from experimenting with a no-fault system because their constitutions prevent interference with citizens’ right to sue. a. True b. False ANSWER: True Completion 36. The carrier providing initial coverage for all damages up to the limits of the policy is said to be the ____________________ coverage provider.

ANSWER: primary 37. ____________________ is the right of an insurer to recover against the responsible party in the name of its insured for monies that it has paid.

ANSWER: Subrogation Copyright Cengage Learning. Powered by Cognero.

Page 124

Name:

Class:

Date:

38. __________ may be required by the court if an insurer issues a policy with limits less than those required by the state statute.

ANSWER: Reformation of policy 39. A(n) ____________________ policy comes into effect after the underlying policy limits have been exhausted.

ANSWER: umbrella 40. Coverage for reimbursement for repair or replacement of vehicles damaged in an accident is called ____________________ coverage.

ANSWER: collision 41. A(n) ___________ provision precludes payment if another insurance is available.

ANSWER: coordination of benefits

42. A(n) ____________________ motorist provision in an insurance policy provides coverage for losses caused by an uninsured motorist.

ANSWER: uninsured 43. When an insurance carrier pays monies to its insured but has a right to go against the third party responsible for those losses, it is said to be ____________________ to the rights of its insured.

ANSWER: subrogated 44. ____________________ coverage provides reimbursement to the insured for losses to their vehicle or possessions in the vehicle other than those relating to collision claims.

ANSWER: Comprehensive 45. ____________________ coverage does not come into effect until after the primary coverage has been paid.

ANSWER: Secondary 46. In many policies, disputes with respect to medical payments, uninsured motorist, and underinsured motorist coverage are not tried in court but are subject to compulsory ____________________.

ANSWER: arbitration 47. If a third party responsible for injuries has insurance, but the limit of that insurance is insufficient to compensate the insured, the insured may look to their own ____________________ motorist coverage if they have purchased it to compensate them for the difference.

ANSWER: underinsured 48. If an insured is injured by a motorist with no insurance, they may look to their own ____________________ motorist coverage to provide compensation for their injuries.

ANSWER: uninsured 49. If an insurer attempts to issue a policy with limits less than the statutory requirements, the courts will ____________________ the policy to make it provide statutorily mandated minimum limits.

ANSWER: reform Subjective Short Answer 50. What is ―no-fault‖ insurance?

Copyright Cengage Learning. Powered by Cognero.

Page 125

Name:

Class:

Date:

ANSWER: No-fault insurance is based on the concept that the insured’s carrier should pay for the insured’s damages regardless of who is at fault. It was created to ensure prompt payment to the injured insured and in reduced automobile premiums. Neither of these has occurred.

51. Give an example of when an umbrella policy might be used.

ANSWER: As a practical matter bodily injury limits in excess of $250,000 to $500,000 and property damage in excess of $100,000 generally are not covered by the automobile policy itself but by a separate policy called an umbrella policy. The umbrella policy may be written by the same carrier issuing the automobile insurance policy or by a different carrier. Such a policy is usually subject to a large deductible.

52. For what reason might a court reform an insurance policy?

ANSWER: If an insurance carrier attempts to issue a policy with limits less than those required by the statute, the courts will call for reformation of the policy by construing it to provide the minimum statutory coverage. In some instances, the insurance policy itself provides terms and conditions to conform the policy to state law in the event the cancellation or nonrenewal provisions are contrary to the laws of the state.

53. What is the purpose of subrogation?

ANSWER: If an insurer pays its insured, the insurer is then subrogated to the rights of the insured, meaning it can institute suit against the responsible person, in the name of the insured, to collect the amounts paid by the insurer to the insured. It is universally allowed with respect to uninsured motorist, collision, and comprehensive payments made by the insurer. If it is allowed, the insured has an obligation to cooperate with their insurer in the subrogation claim.

54. Name two types of coverage for which subrogation is allowed.

ANSWER: Any two of the following: Subrogation is universally allowed with respect to: 1. uninsured motorist 2. collision 3. comprehensive payments made by the insurer.

55. What is the difference between primary and secondary coverage?

ANSWER: Most UM and UIM policies provide coverage regardless of whether the insured was driving the automobile specifically referred to in the policy or a different vehicle. If the insured was driving a different vehicle, the UM coverage will be coordinated with the coverage that would otherwise be available on the vehicle being driven. Most policies designate the coverage provided with the vehicle being driven as primary and the policy covering the driver (the insured in this case) as secondary. The primary carrier is liable for all damages up to the limits of its policy. At that point, the secondary carrier is liable for any damages sustained by the insured above the limits of the primary policy up to the amount of the insured’s loss or the limits of the excess policy, whichever is less.

56. Which coverage is considered primary when the insured is injured in a vehicle owned by someone else?

ANSWER: The owner’s coverage. The automobile owner’s medical payment coverage will be primarily responsible for payment of the insured’s medical expenses up to the limits of the owner’s medical payment coverage.

57. What is a coordination of benefits provision?

ANSWER: If an insured has applicable insurance in addition to that provided by her automobile policy, the coordination Copyright Cengage Learning. Powered by Cognero.

Page 126

Name:

Class:

Date:

of benefits provision (mentioned earlier) of most policies will require the insurance carrier to be responsible for its pro rata share of the damages, as long as the insured is driving their own vehicle. A carrier’s pro rata share is determined by the proportion of its coverage to the total amount of available insurance.

58. What is the difference in uninsured motorist and underinsured motorist coverage?

ANSWER: Uninsured Motorist coverage (UM) ensures funds are available to compensate the injured insured. This coverage guarantees compensation up to the limits of the insured person’s policy by their own insurer to the extent that a third party is responsible for their injuries. Underinsured motorist coverage (UIM) protects the insured who is injured by a motorist whose liability coverage is insufficient to fully compensate the insured for their injuries.

Most states prohibit stacking these policies.

59. What is the difference between comprehensive and collision coverage?

ANSWER: Comprehensive automobile insurance provides coverage for loss to the insured vehicle and, in some cases, to a non-owned automobile for losses other than those resulting from collision. Collision insurance reimburses the insured if they must repair or replace a damaged vehicle.

60. What is the difference between an actual cash value policy and a replacement cost policy?

ANSWER: Reimbursement for a lost or damaged item is determined by its actual cash value (purchase price less depreciation) or its replacement cost. The actual cash value can be substantially less than its replacement cost.

61. Why should an insured be circumspect when purchasing accessory coverages?

ANSWER: It is often unnecessary and very expensive for the benefits you get.

62. Why is it important to purchase adequate UM coverage?

ANSWER: It is required by law and it protects the driver and the occupants from not receiving damages caused by an uninsured motorist. Most states require that UM coverage be provided with the issuance of a liability policy.

The minimum limits are set by state statute and often the same as the minimum-coverage limits required for liability insurance coverage.

63. Give an example of stacking of claims.

ANSWER: Most states prohibit stacking of policies for UM and UIM coverage. In other words, UM and UIM are not available to the insured for the same accident. Therefore, an uninsured motorist who is the responsible party cannot be alleged by the insured to be both uninsured for the purposes of UM coverage and underinsured for purposes of UIM coverage. In multi-vehicle accidents, however, UM coverage may be applicable to one joint tortfeasor and UIM coverage may be applicable to another.

64. Describe the process used in the selection of arbiters for a dispute regarding automobile insurance coverage.

ANSWER: Both the insured and the carrier are usually required to select and pay for an arbiter of their choosing. The two arbiters then select a third arbiter, whose compensation is split evenly by the insured and the insurer. However, today most of the times, a single arbiter is agreed upon. It is quicker and less expensive than litigation.

65. Under what conditions is an arbitration award not binding?

ANSWER: If an award is entered in excess of the statutory minimal limits for bodily injury.

66. If the award is not binding, what are the parties entitled to?

ANSWER: A trial de novo or a new trial in which the issue of damages is relitigated without regard to the arbiters’ findings is held.

67. Describe two situations in which an insurer would be entitled to terminate an insured’s policy.

ANSWER: a. Failure to pay the premium.

Copyright Cengage Learning. Powered by Cognero.

Page 127

Name:

Class:

Date:

b. The insurer can also terminate a policy if an insured or driver who lives with the insured has their license suspended or revoked. c. Insurer can also terminate a policy if an insured is convicted of driving while intoxicated.

68. What must an insurer do if it decides to terminate a policy?

ANSWER: It must comply with the policy’s notification requirements as well as the terms and conditions upon which termination is permitted in that state.

69. What is the purpose of no-fault insurance?

ANSWER: No-fault automobile insurance was created in response to what was perceived as a crisis in the automobile insurance industry—a crisis caused by the increasing volume of tort claims for automobile accidents.

70. Why has no-fault insurance not been particularly successful in some states?

ANSWER: In many states, such as New Jersey, the threshold for suing in tort is so low that the no-fault benefits are merely add-on costs for the typical tort suit that follows. The existence of a threshold amount also appears to have increased treatment expenses in no-fault states.

71. How does no-fault compare to workers’ compensation?

ANSWER: In a no-fault system the right to sue is relinquished; medical expenses are paid; and, after a prescribed waiting period, lost wages are paid for a preset percentage of the insured’s average monthly wage. Unlike workers’ compensation, no-fault medical and rehabilitation expenses are limited by the amount of coverage purchased, as is the amount of lost wages.

72. What does an injured insured gain by giving up the right to sue?

ANSWER: Oftentimes they are given the right to specific benefits and do not have to prove the elements of a tort.

Chapter 18-Bad Faith

True / False 1. An adhesion contract is a contract negotiated between parties of equal bargaining power. a. True b. False ANSWER: False 2. Bad faith is considered an intentional tort. a. True b. False ANSWER: True

3. The winner of a declaratory judgment action will get provable damages in addition to attorneys’ fees and court costs. a. True b. False ANSWER: False 4. An excess judgment is a judgment obtained in an amount greater than the applicable policy limits.

Copyright Cengage Learning. Powered by Cognero.

Page 128

Name:

Class:

Date:

a. True b. False ANSWER: True 5. Bad faith can occur in only one way. a. True b. False ANSWER: False 6. The reasonable expectations doctrine is no longer utilized by the courts in interpreting standardized contracts. a. True b. False ANSWER: False 7. Contract remedies are often insufficient in bad faith cases. a. True b. False ANSWER: True

8. Bad-faith claims are allowed only in third-party situations. a. True b. False ANSWER: False 9. If the insurer defends the insured under a reservation of rights, the insured is no longer obliged to cooperate with the insurer. a. True b. False ANSWER: False 10. It is unlawful in most states for an insured to assign their rights against their insurer to the injured party. a. True b. False ANSWER: False 11. When an insurer denies coverage to a claim made against the insured, the insured’s duty to cooperate with the insurer is not terminated. a. True b. False ANSWER: False 12. Third party cases have a more direct route to the courthouse than first party cases. a. True b. False ANSWER: False

Copyright Cengage Learning. Powered by Cognero.

Page 129

Name:

Class:

Date:

13. In every case where a judgment against the insured is entered in excess of the insured’s policy limits, the insured will have a claim against their insurer for bad faith. a. True b. False ANSWER: False 14. If an insurer is found guilty of bad faith, the insurer will also be automatically liable for punitive damages. a. True b. False ANSWER: False 15. In a first-party bad faith claim, the insured can recover only the unpaid benefits of the policy. a. True b. False ANSWER: False 16. In a typical reservation of rights case an insured must advise the insurer of the terms and conditions of the agreement prior to entering any agreement. a. True b. False ANSWER: True 17. A reservation of rights case is resolved once the injured party files suit against the insurer in the name of the insured. a. True b. False ANSWER: True

18. In order for an insurer to be guilty of bad faith, it must be guilty of more than mere negligence. a. True b. False ANSWER: True 19. If an insurer’s actions are particularly egregious, punitive damages are automatic. a. True b. False ANSWER: False 20. An insurer can assert any defense that the responsible party has including comparative or contributory negligence in an UM or UIM case. a. True b. False ANSWER: True

21. An insured’s bad faith claim with respect to UM coverage is subject to compulsory arbitration as required in the insurance contract. a. True b. False ANSWER: False Copyright Cengage Learning. Powered by Cognero.

Page 130

Name:

Class:

Date:

Completion 22. A standardized contract characterized by unequal bargaining power and lack of negotiation ability is called a(n) ____________________ contract.

ANSWER: adhesion 23. Interpreting contracts in favor of the non-drafter is now commonly referred to as the ______________ doctrine.

ANSWER: reasonable expectations

24. An action to determine whether coverage exists with respect to a particular incident, but for which no damages will be awarded, is called a _________________________ action.

ANSWER: declaratory judgment 25. A judgment greater than the insured’s policy limits is called a(n) ____________________ judgment.

ANSWER: excess 26. Bad faith is considered a(n) ____________________ tort.

ANSWER: intentional

27. Ambiguities are usually construed against ____________________ of the contract.

ANSWER: the drafter 28. The tort of bad faith generally applies to claims made by both ____________________ and ____________________ party claims.

ANSWER: first-, third29. When an insurer provides a defense but does not accept coverage, it is said to be defending the insured under a(n) _________________________.

ANSWER: reservation of rights 30. If the insurer’s actions are egregious enough, the insurer might be liable for ____________________ damages in addition to damages for breach of contract and bad faith.

ANSWER: punitive 31. The test to be used in measuring the insurer’s action in first-party bad-faith claims is the ____________________ standard.

ANSWER: fairly debatable or reasonableness 32. The standard to be used in third-party bad-faith claims is the _________________________ test.

ANSWER: equal considerations 33. A third-party characteristic of the UM and UIM coverages is that the insurer stands in the ________ of the allegedly responsible party.

ANSWER: shoes

Subjective Short Answer Copyright Cengage Learning. Powered by Cognero.

Page 131

Name:

Class:

Date:

34. Give an example of an adhesion contract.

ANSWER: An adhesion contract is a standardized contract commonly used in business (an example of which is the contract signed by consumers when financing a car). Adhesion contracts are characterized by the courts as those contracts in which the party drafting the contract has superior bargaining power and the other party is typically unfamiliar with the terms of the contract and also has no real opportunity to negotiate what those terms will be.

35. Under what circumstances might it be appropriate to bring a declaratory judgment action?

ANSWER: In a declaratory judgment action, the court renders an opinion with respect to a matter of law or with regard to the rights of the parties but orders no action to be taken. Such an action can serve both defensive as well as offensive purposes. Offensively, a declaratory judgment action can serve to determine that no coverage exists, and that the insurer need not defend or compensate its insured. Defensively, such an action allows a carrier to dispute coverage, as well as to go before a court hoping that the potential for a bad faith claim will be minimized by its efforts to obtain a judicial determination of its position.

36. Does an excess judgment always indicate bad faith on the part of the insurer? Why or why not?

ANSWER: No. The outcome of the case could have been fairly debatable. If the insurer has gambled with its insured’s money by rejecting a reasonable settlement offer within its policy limits, it may be found to have engaged in bad faith.

37. Describe two ways in which an insurer can act in bad faith.

ANSWER: (2 of the following) a. Failure to settle a claim b. When the insurer “lowballs” claims knowing their true full value c. Insurer unreasonably delays payment d. Insurer acts unconscionably towards the insured e. Insurer engages in unfair claims practices

38. When does the reasonable expectations doctrine apply to adhesion contracts?

ANSWER: This doctrine protects the insured’s reasonable expectation that coverage will be provided and not defeated by provisions that would be unanticipated by the ordinary insured and that were never negotiated between the insured and the carrier. The court will reform the contract to the reasonable expectations of the insured even though a detailed review of the contract itself does not support those expectations.

39. Against whom are ambiguities in an insurance contract construed?

ANSWER: Against the drafter of the agreement 40. What is the difference between a breach of contract claim and a bad faith claim?

ANSWER: All contracts have an implied covenant of good faith and fair dealing, which requires the parties to fulfill their obligations under the contract honestly, fairly, reasonably, and in good faith. Courts have held in some circumstances where there is a special relationship between the parties that breach of the covenant of good faith and fair dealing is a tort called bad faith, which can be pursued by the nonbreaching party. Damages for bad faith go beyond the expectancy damages awarded in contract law. Bad faith damages include the full range of tort damages including punitive damages and damages for emotional distress and loss of consortium.

41. What is the difference between a third-party claim and a first-party claim?

ANSWER: Third-party claims are claims in which the insured pays damages to a third party. First-party claims are claims in which an insured demands payment from their insurer in their own right. In a first-party case, the insured pursuant to a contractual right emanating from their insurance contract, sues the insurer. Third-party claims usually arise when the injured party has been assigned the insured’s rights.

Copyright Cengage Learning. Powered by Cognero.

Page 132

Name:

Class:

Date:

42. Who issues a reservation of rights?

ANSWER: The insurance carrier.

43. How does a reservation of rights differ from a denial of coverage?

ANSWER: In a reservation of rights situation, the insurer provides a defense but does not promise to pay any judgment.

When an insurer denies coverage it ―walks away‖ from the insured and neither provides a defense nor agrees to pay damages.

44. What are three of the damage factors utilized in evaluating a third-party bad faith claim?

ANSWER: Any three of the following: a. Amount of judgment entered against insured in excess of insured’s policy limits b. Legal fees incurred by insured c. Emotional distress suffered by insured d. Monetary loss or damaged credit reputation of insured 45. What are three of the damage factors utilized in evaluating a first-party bad faith claim?

ANSWER: a. Unpaid benefits of policy b. Legal fees incurred by insured c. Lost interest on unpaid amount due insured d. Emotional distress suffered by insured e. Any other financial losses of insured caused as a result of insurer’s bad faith

46. What does ―fairly debatable‖ mean in the context of bad faith?

ANSWER: Some courts consider denial of a claim reasonable (and therefore not in bad faith) if the claim is ―fairly debatable.‖ Some courts require a showing of more than mere negligent conduct before they will find that an insurer acted in bad faith.

47. When might an insurer bring a declaratory judgment action?

ANSWER: Insurers will often institute a declaratory judgment action to determine if coverage existed. In a declaratory judgment action, the court renders an opinion with respect to a matter of law or with regard to the rights of the parties but orders no action to be taken. Such an action can serve both offensive and defensive approaches.

Chapter 19-Workers’ Compensation True / False 1. The implied promise in workers’ compensation is that workers will be justly compensated for their injuries if they forego their right to sue. a. True b. False ANSWER: True 2. Workers’ compensation flourished before the Industrial Revolution. a. True b. False ANSWER: False 3. The fellow servant rule absolves employees of liability for harm they negligently inflict on their fellow employees.

Copyright Cengage Learning. Powered by Cognero.

Page 133

Name:

Class:

Date:

a. True b. False ANSWER: False 4. All states have a workers’ compensation system today. a. True b. False ANSWER: True 5. In a voluntary coverage jurisdiction, employees must accept the workers’ compensation benefits imposed by statute. a. True b. False ANSWER: False 6. All but one state has mandatory workers’ compensation coverage. a. True b. False ANSWER: True

7. Voluntary ―opting out‖ is an illusion in most cases. a. True b. False ANSWER: True 8. The primary goal of workers’ compensation is to protect employers from suit. a. True b. False ANSWER: False 9. Workers’ compensation is administered by administrative law judges and hearing officers. a. True b. False ANSWER: True 10. Statutes may not exempt workers from being covered for injuries caused by intentional acts or due to intoxication. a. True b. False ANSWER: False 11. When an injury is ―scheduled,‖ the compensation for that injury must be paid within a specified time. a. True b. False ANSWER: False 12. Certain injuries with varying types of symptoms cannot be scheduled. a. True Copyright Cengage Learning. Powered by Cognero.

Page 134

Name:

Class:

Date:

b. False ANSWER: True

13. Employees cannot, under any circumstances, receive compensation if their employer is unable or unwilling to compensate them. a. True b. False ANSWER: False 14. Workers’ compensation statutes do not violate the Due Process Clause of the U.S. Constitution but may violate state constitutions. a. True b. False ANSWER: True 15. Failure to conform to the procedures set forth in the workers’ compensation statutes can result in the loss of benefits. a. True b. False ANSWER: True 16. The workers’ compensation system does not usually fairly compensate injured employees. a. True b. False ANSWER: True

17. Arguably, employers today may have as much control over their employees as they did before workers’ compensation was developed. a. True b. False ANSWER: True 18. One of the uncontested benefits of workers’ compensation is that it has dramatically improved the relationship between employees and employers. a. True b. False ANSWER: False

19. Workers are rarely fraudulent in their dealings with the workers’ compensation bureaucracy. a. True b. False ANSWER: False 20. Workers’ compensation protects employees from losing their jobs or seniority or advancement opportunities due to work-related injuries. a. True Copyright Cengage Learning. Powered by Cognero.

Page 135

Name:

Class:

Date:

b. False ANSWER: False 21. The compensation received under workers’ compensation is generally equal to the earnings prior to the accident. a. True b. False ANSWER: False 22. Most states place a cap on the monthly wage workers can be paid as part of their compensation. a. True b. False ANSWER: True 23. In most states, the statutory monthly wage is tied to the cost of living index or the state’s average monthly wage. a. True b. False ANSWER: False 24. Employers have an incentive in minimizing the number of claims because their premium is based on their claims history. a. True b. False ANSWER: True 25. The employer’s insurance carrier acts as a watchdog and monitors claims to check for fraud. a. True b. False ANSWER: True

26. Statutory requirements cause the greatest delays in the resolution of claims. a. True b. False ANSWER: False 27. Workers are rarely prosecuted for engaging in fraudulent practices in relation to their workers’ compensation claims. a. True b. False ANSWER: True 28. Insurance companies are commonly deterred from engaging in ―hardball‖ practices because of statutes that make bad faith easy to prove in the context of workers’ compensation. a. True b. False ANSWER: False 29. To qualify for workers’ compensation benefits, a worker must prove they were injured ―on the job.‖ Copyright Cengage Learning. Powered by Cognero.

Page 136

Name:

Class:

Date:

a. True b. False ANSWER: True 30. Employees are obliged to report injuries to their employer, but employers have no reporting obligations. a. True b. False ANSWER: False 31. Computation of the average monthly wage is not always straightforward. a. True b. False ANSWER: True 32. In most cases, the average monthly wage is based on the prior year’s income. a. True b. False ANSWER: True 33. Permanent partial disability payments are based on the difference between an employee’s post-injury capacity and the earning capacity of the average worker in that same job. a. True b. False ANSWER: False 34. Compensation is allowed for permanent impairment. a. True b. False ANSWER: True 35. Compensation is allowed for injuries caused by a co-employee. a. True b. False ANSWER: True 36. Employees have a right to assert tort claims against third parties although their employer may have subrogation rights. a. True b. False ANSWER: True 37. Subrogation claims of employers can be an impediment to a worker asserting their rights against a third party. a. True b. False ANSWER: True Copyright Cengage Learning. Powered by Cognero.

Page 137

Name:

Class:

Date:

38. Workers’ compensation is immune from such issues as sexual harassment, communicable diseases, hostile work environment, and employee rage. a. True b. False ANSWER: False 39. Telecommuting has raised a lot of new issues with regards to workers’ compensation claims. a. True b. False ANSWER: True

Completion 40. Under the ____________________ rule, an employer is not liable for injuries incurred by an employee as a result of another employee’s negligence even though employees are liable to their fellow employees.

ANSWER: fellow servant 41. The major types of workers’ compensation systems today are ____________________ and ____________________ coverage.

ANSWER: mandatory, voluntary voluntary, mandatory 42. Employees who voluntarily ____________________ of workers’ compensation coverage retain the right to sue their employer in state court.

ANSWER: opt out 43. The primary goal of workers’ compensation is to __________________________________________________.

ANSWER: compensate injured workers without regard to fault 44. The fixed determination of what an injury is worth in terms of compensation is referred to as ____________________.

ANSWER: scheduling 45. An injury like a lost limb or blindness is a(n) ______________ injury.

ANSWER: scheduled

46. Most states have established a(n) ____________________, which allows employees to be compensated even though their employer lacks insurance or the funds to compensate them.

ANSWER: fund 47. In your state, the _________________________ administers workers’ compensation.

ANSWER: Varies from state to state 48. The ________________ causes the greatest delays in claim resolution with regard to workers’ compensation.

ANSWER: adversarial aspect of the system

Subjective Short Answer 49. For what purpose was workers’ compensation developed?

Copyright Cengage Learning. Powered by Cognero.

Page 138

Name:

Class:

Date:

ANSWER: It was conceived to circumvent certain problems of the tort system and to protect workers who are injured, whether or not due to their own negligence. It also relieves employers from tort responsibility for on-the-job injuries to their employees. Workers’ compensation systems were intended to provide fast and efficient relief to injured workers without regard to fault. In theory, an injured worker gave up the right to sue their employer (and the right to a jury) in return for the implied promise that their reasonable medical expenses would be taken care of and that the injured worker would be compensated for the wages they lost as a result of the injury.

50. What impact did the Industrial Revolution have on workers’ compensation?

ANSWER: Workers’ compensation systems arose out of the industrial revolution of the nineteenth century. Hard physical labor with machines and equipment designed to perform tasks without regard for the protection of operators resulted in numerous injuries. The tort system of the time was ill-equipped, from the employee’s standpoint at least, to handle the medical expenses and lost wages of injured workers. Several common law defenses were available to the employer, such as contributory negligence, assumption of risk, and the fellow-servant rule (which rendered an employer non liable for an injury inflicted upon an employee through the negligence of a fellow employee but made every employee liable to their fellow workers for the employee’s own negligence).

Because of these defenses and the employer’s superior financial position, injured workers had little chance to obtain compensation through the courts.

51. What is the difference between mandatory and voluntary coverage?

ANSWER: The two major types of workers’ compensation are mandatory coverage and voluntary coverage. In mandatory-coverage jurisdictions, the employee has no alternative other than to accept the benefits and restrictions imposed by the statutory framework adopted in the employee’s state. In voluntary-coverage jurisdictions, the employee may opt out of the system and retain their right to sue the employer in state court.

Because most workers are unaware of what the system does or how it actually works, voluntary opting out is more illusory than real. Additionally, in most states if a person accepts any benefits (medical expenses or lost wages), that person is conclusively deemed to have opted in.

52. What is the primary goal of workers’ compensation?

ANSWER: Compensation of injured workers without regard to fault. It is to circumvent the tort system and protect workers who are injured. It also relieves employers from tort responsibility for on the job injuries of their employees. They were intended to provide fast and efficient relief to injured workers.

53. What is meant by ―scheduling‖ an injury?

ANSWER: In many states injuries such as loss of an eye, total blindness, or loss of an appendage are classified as scheduled injuries, that is, a fixed benefit (usually a set number of months’ compensation) is paid for the injury without regard to lost wages or medical expenses.

54. Who administers workers’ compensation in your state?

ANSWER: Answers may vary.

55. What problems has the workers’ compensation bureaucracy created?

ANSWER: The bureaucracy that was birthed to solve the problems of the injured worker has created many new problems.

To illustrate, state legislatures control the benefits to be paid and how they are to be calculated. Therefore, today’s employers may have as much control over their employees as they did before the onset of workers’ compensation. Although outdated wage scales and artificial maximum benefits may spur injured employees to return to work as soon as possible, they do not necessarily provide adequate compensation for injured employees with valid claims. Furthermore, fraud is rampant among employees, and insurance carriers have resorted to ―hardball‖ tactics to counteract this deception. Such responses to workers’ compensation have created a climate of fear and distrust between employees and employers.

Copyright Cengage Learning. Powered by Cognero.

Page 139

Name:

Class:

Date:

The system does not always fairly compensate injured employees. An injured worker is generally not entitled, for example, to continued employer contributions for retirement benefits while they are off work because of an injury. Furthermore, the injured employee may lose their job, seniority, and/or job advancement opportunities. The compensation the injured employee is paid is almost always less than their earnings prior to the accident even though the employer remains liable for the injured employee’s medical expenses.

56. How would you calculate the benefits for a worker who lost an arm in a work-related accident if they earned on the average $1,200/month before the accident? Assume that compensation in their state is at 70 percent of the average monthly wage and that loss of an arm is worth fifty months’ compensation (with that compensation at 50 percent of the average monthly wage).

ANSWER: Answers will vary according to each state’s laws, rules, and regulations.

57. Why is it in an employer’s best interest to get injured workers back to work as soon as possible?

ANSWER: The employer’s premium is based on its claims history. It is, therefore, in the employer’s best interest to minimize the number of claims and get the injured worker stabilized and back to work (or able to get back to work) as soon as possible. This is why the employer’s insurance carrier acts as a watchdog and monitors the claims it processed to check for fraud.

58. Why is there often a delay in resolving claims?

ANSWER: The adversarial aspect of the system causes the greatest delays in claims resolution. The employer, usually acting through its insurance carrier, can require the injured employee to submit to an independent medical examination (IME) by a doctor of the employer’s choosing. (An IME is sometimes not allowed in states where the employer can require the employee to be treated by an approved workers’ compensation physician.) When disputes occur, they are heard by administrative law judges. The hearings are often bifurcated to allow the physicians to testify at times convenient for them. These procedural requirements slow down the resolution process.

59. What have employees done to sabotage the workers’ compensation system?

ANSWER: Employees have caused many of the problems with a system designed to ensure fast and efficient resolution of claims. Outright fraud and attempts to continue receiving benefits after recovery are widespread. Surveillance of claimants to catch them performing physical acts of which they are supposedly incapable, is commonplace.

The results appear to justify the money spent on such surveillance. Social media plays a huge role in ―catching‖ people doing things they state they are physically unable to do.

60. Before filing a workers’ compensation claim, what must employees establish?

ANSWER: The first requirement for filing a workers’ compensation claim is that the employee be injured ―on the job.‖ 61. What kinds of issues confront the workers’ compensation system today?

ANSWER: Just as society has grappled with workplace issues such as sexual harassment, creation of a hostile environment, communicable diseases and employee rage, so too has the workers’ compensation system. Many systems are still groping for the appropriate ways to handle issues supposedly addressed by federal and state legislation. For example, is potential exposure to a communicable disease a compensable injury if the worker does not become infected? Do the psychological stresses caused by the fear of possibly contracting that disease which could result in a person’s being unable to work, constitute a work-related injury? Psychological incapacity due to sexual harassment and/or hostile work environments must also be addressed. Many systems are having problems as well in dealing with purely psychological injuries that have no physical cause. (new) 56. How has telecommuting affected workers’ compensation claims?

Copyright Cengage Learning. Powered by Cognero.

Page 140

Name:

Class:

Date:

ANSWER: Telecommuting raises questions of whether an injury ―arises out of‖ and ―in the course of‖ employment. When workers work from home and they fall, is that ―on the job‖? Where is the line drawn in these cases? If the worker is working longer than required because they are at home and they are exhausted and cause themselves to get injured, is that a workers’ compensation claim?

Copyright Cengage Learning. Powered by Cognero.

Page 141