Chapter 8: Negligence and Strict Liability - Lecture Notes | BLAW 3201, Study notes of Business and Labour Law

Download Chapter 8: Negligence and Strict Liability - Lecture Notes | BLAW 3201 and more Study notes Business and Labour Law in PDF only on Docsity! Chapter 8—Negligence and Strict Liability TRUE/FALSE 1. A blind person will be held to the standard of care of a reasonable blind person rather than that of the reasonable sighted person for purposes of determining negligence. ANS: T PTS: 1 2. In applying the reasonable person standard, the court takes into account a person's physical, but not mental, handicaps. ANS: T PTS: 1 3. The same "reasonable person standard" is applied to children as to adults. ANS: F PTS: 1 4. A person who falls asleep while driving would not be liable for any resulting injury since it would be an unavoidable accident. ANS: F PTS: 1 5. In the majority of states, in a case of negligence per se the plaintiff would only have to prove violation of a statute in order to show negligent conduct. ANS: T PTS: 1 6. Parents are not liable to a storekeeper for the destruction caused by their children if they permit the children to run wild through the store. ANS: F PTS: 1 7. A reasonable person, as used in the law of torts, is a fictitious individual who is always careful, prudent, and never negligent. ANS: T PTS: 1 8. Compliance with a legislative enactment or administrative regulation does not prevent a finding of negligence if a reasonable person would have taken additional precau- tions to avoid harm. ANS: T PTS: 1 9. In all states, a sixteen-year-old who drives a car will not be held to the same standard of care as an adult for purposes of determining negligence. ANS: F PTS: 1 10. Where two factors, each of which is sufficient to bring about the harm in question, together cause a harm, the "but for" rule of causation is not useful. ANS: T PTS: 1 11. A defendant will be liable for all harm that can be traced back to the defendant's negligence. ANS: F PTS: 1 12. All intervening events that occur subsequent to the defendant's negligent conduct will relieve the defendant of liability. ANS: F PTS: 1 13. If negligence of the plaintiff and negligence of the defendant proximately caused the injury and damage sustained by the plaintiff, the plaintiff can recover some damages in those states where contributory negligence is still recognized. ANS: F PTS: 1 14. Comparative negligence by a plaintiff results in the plaintiff's being complete- ly unable to recover. ANS: F PTS: 1 15. The owner of a dog will always be strictly liable if the dog bites someone. ANS: F PTS: 1 16. In some instances, people may be held liable for injuries they have caused even though they have not acted intentionally or negligently. ANS: T PTS: 1 17. Tom's dog has bitten three letter carriers, but Tom can't bear to chain him up. When the dog bites the newsboy, Tom will be strictly liable. ANS: T PTS: 1 18. If a raccoon gets loose from a cage and harms someone, the owner can escape liability by showing that he took great care to keep the animal confined. ANS: F PTS: 1 19. The lawful possessor of land is liable to adult trespassers for failure to maintain the land in a reasonably safe condition. ANS: F PTS: 1 20. A parent is always liable for the torts of his minor child simply because of the parental relationship. ANS: F PTS: 1 21. A widely applied test for causation in fact is the "but for" rule. ANS: T PTS: 1 22. Special relations between the parties, such as babysitter and child, may impose a duty of reasonable care to aid or protect the child in situations where the duty would not otherwise exist. ANS: T PTS: 1 23. The Third Restatement of Torts limits the defense of assumption of risk to express assumption of the risk. ANS: T PTS: 1 24. A tiger gets loose from the tent of a circus and mauls a passerby. The circus claims it has always treated the animal well and that it was not at all negligent in its handling of the animal. The circus has no liability for the injury caused by the animal. ANS: F PTS: 1 25. If a person's 150-pound sheep dog has a tendency to jump enthusiastically on visitors, the animal's keeper would not be liable for any damages done by the dog's playful- ness. ANS: F PTS: 1 26. A possessor of land is under a duty to exercise reasonable care to protect invitees against dangerous conditions they are unlikely to discover. ANS: T PTS: 1 27. The Third Restatement of Torts has abandoned the doctrine of implied voluntary assumption of risk in tort actions. ANS: T PTS: 1 28. Ted is informed that his six-year-old child is shooting in the street with a .22 rifle. Ted fails to take the gun away from the child. The child unintentionally shoots Bill, a pedestrian. Ted is liable to Bill. ANS: T PTS: 1 29. A licensee for purposes of tort law is a person invited upon land as a member of the public or for a business purpose. ANS: C PTS: 1 7. Henry was burning leaves in his backyard. One of the burning leaves was lifted by the wind into Emilio's yard next door. It landed on the lawn mower which exploded, setting fire to the wooden lawn furniture. Henry's best argument against liability would be: a. that the leaf was not a substantial factor in causing the damage. b. res ipsa loquitur. c. that it was not foreseeable that the lawn mower would explode. d. that the damage was not caused by the leaf but by the gasoline. ANS: C PTS: 1 8. An action for negligence consists of five elements, each of which the plaintiff must prove. These elements include: a. harm. b. res ipsa loquitur. c. a reasonable person. d. All of the above. ANS: A PTS: 1 9. Joe intentionally pushed Bill into a fence negligently erected by Sam around Sam's swimming pool. The fence caved in and Bill nearly drowned. Under the Second Restatement, who is liable? a. Sam, because of his negligent conduct. b. Sam, because Joe's conduct would be foreseeable. c. Joe, because of his intentional intervening conduct. d. Sam and Joe, because they both contributed to the harm. ANS: C PTS: 1 10. Pat and Sally started a charcoal fire for Sally's backyard barbecue and left it uncovered. Then Sally went into the kitchen to make hamburger patties. While Sally was inside, Pat backed up to catch a football and hit the grill, knocking the coals onto his feet. In a modified comparative negligence state, who is liable? a. Sally is liable for ALL of Pat's injuries. b. If Sally is found negligent, Sally is liable for a proportionate share of Pat's injuries unless Pat’s negligence was as great as or greater than Sally’s. c. Sally is not liable for any of Pat's injuries. d. Sally is liable for Pat's injuries only if Pat was more negligent than Sally. ANS: B PTS: 1 11. Cal sprayed pesticide on his crops in a very careful manner on a windless day. Nevertheless, some of the pesticide spray fell on his neighbor's side of the fence and contaminated the feed for the chickens. The chickens died, and the neighbor sues. What is the likely result? a. Cal is not liable because he was not negligent in his spraying operation. b. Cal is not liable because the neighbor assumed the risk of damage to the feed by placing it so close to the fence. c. Cal is liable because spraying pesticides is an abnormally dangerous activity. d. Cal is not liable for the damage because of contributory negli- gence. ANS: C PTS: 1 12. If a statute is found to be applicable to a fact situation, then the courts will hold that an unexcused violation of that statute which causes an injury to another is: a. strict liability. b. res ipsa loquitur. c. negligence per se. d. assumption of the risk. ANS: C PTS: 1 13. Mr. and Mrs. Weaver have a duty to: a. control the behavior of their minor son with regard to foresee- able risks. b. merely warn their dependent son regarding his activities related to third persons involving foreseeable risks. c. Either (a) or (b), depending upon the circumstances. d. use reasonable care under the circumstances to third persons with regard to foreseeable risks that arise within the family relationship no matter what their son’s age. a. control the behavior of their minor son with regard to foresee- able risks. b. merely warn their dependent son regarding his activities related to third persons involving foreseeable risks. c. Either (a) or (b), depending upon the circumstances. d. use reasonable care under the circumstances to third persons with regard to foreseeable risks that arise within the family relationship no matter what their son’s age. ANS: C PTS: 1 14. Which of the following is/are considered in determining the application of the reasonable person standard? a. Physical disability. b. Superior skill or knowledge. c. Emergency circumstances. d. All of the above are considered. ANS: D PTS: 1 15. The rule which permits the jury to infer both negligent conduct and causation from the mere occurrence of certain events is: a. proximate cause. b. res ipsa loquitur. c. causation in fact. d. comparative negligence. ANS: B PTS: 1 16. William, who is a waiter, is injured when an unopened bottle of cola explodes in his hand while he is putting it into the restaurant's cooler. If William wants to sue the bottling company for his injuries: a. he will lose, because it will be impossible for him to prove that the bottle was overpressurized by the bottler. b. he will lose, because the bottling company has no duty to him. c. he will probably win if the court allows him to use the res ipsa loquitur doctrine. d. he will win based on the last clear chance rule. ANS: C PTS: 1 17. Sarah goes to Marlin's Department Store to look for clothes. The store happens to be in the process of remodeling, and there is a lot of clutter in the aisle. Sarah trips over the clutter and is injured. Sarah's status with regard to the store is that of: a. licensee. b. business visitor. c. public invitee. d. trespasser. ANS: B PTS: 1 18. Conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which cooperates with the negligence of the defendant in bringing about the plaintiff's harm is: a. comparative negligence. b. contributory negligence. c. res ipsa loquitur. d. voluntary assumption of the risk. ANS: B PTS: 1 19. Stella goes to Ranger's Department Store to look for clothes. The store is in the process of remodeling, and there is a lot of clutter in the aisle. Stella trips over the clutter and breaks her leg. What standard of care does the store have toward Stella under the circumstances? a. None, because she came to the store voluntarily. b. The store owes her a duty of only ordinary care, because she is a trespasser. c. Because she is a licensee, the store must warn her of hazards of which the store knows but which Stella is not likely to discover. d. Because Stella is a business visitor, the store must exercise reasonable care to protect her against dangerous conditions she is unlikely to discover. ANS: D PTS: 1 20. Perry is injured on the job at the factory where he works. He files a workers' compensation claim against his employer. The liability of the employer under the workers' compensation statute is: a. comparative. b. strict. c. contributory. d. negligence per se. ANS: B PTS: 1 21. The local supermarket has a large, glass front door which is well lighted and plainly visible. Nelson, who is new in the neighborhood, mistook the glass for an open doorway and walked into it, shattering the door and injuring himself. a. The store is strictly liable to Nelson. b. The store is not liable to Nelson. c. Res ipsa loquitur would require the store to be held liable. d. The store has no duty to Nelson. ANS: B PTS: 1 22. Adam doesn't like having neighborhood teenagers walk across his yard at night. He rigs an animal trap on the path the teenagers usually use to cross his land. One night, Tim and his friends are walking across the yard when Tim gets caught in the trap. He is taken to the hospital for his injuries. a. Tim is a trespasser on Adam's property, and Adam has the right to use animal traps to strongly discourage anyone from trespassing. b. Adam has no duty toward Tim. c. Adam is not free to inflict intentional injury on a trespasser. d. All of the above. ANS: C PTS: 1 23. Seventeen-year-old Todd has just received his driver's license. He is driving a little too fast one day and slams into the back of another car, which has just stopped for a stop sign. a. Todd is engaging in an adult activity and will be held to the same standard as an adult in most of the states. b. Todd is a minor and will have no responsibility for his torts. c. Todd's parents are responsible for any torts he commits. d. Both (b) and (c). ANS: A PTS: 1 24. In determining the duty of care owed by a defendant using the reasonable person standard, the court will consider which of the following factors? a. The existence of emergency conditions b. A physician's training and years of experience c. A person's severe mental retardation d. Both (a) and (b), but not (c). ANS: D PTS: 1 25. Violation of a statute designed to protect underage, unlicensed drivers, as well as innocent third parties, from the consequences of juvenile car theft and "joy riding" by prohibiting car owners from leaving the keys in their cars if the cars are unattended, is likely to be characterized as: a. negligence per se. b. res ipsa loquitur. c. contributory negligence. d. assumption of risk. ANS: A PTS: 1 26. The harshness of the contributory negligence doctrine has been mitigated by: a. the last clear chance rule. b. substitution of the doctrine of comparative negligence. c. strict liability. d. Both (a) and (b), but not (c). ANS: D PTS: 1 27. A form of strict liability applies to all of the following situations except: a. a lawnmower sold in a defective condition that injures its owner. b. a fireworks factory that blows up and injures townspeople and their property. c. a medical procedure. d. a herd of goats that travel onto a neighbor's property, eating and trampling the neighbor's roses. a. invitees, trespassers, or licensees. b. reasonable persons. c. fiduciaries. d. involved in abnormally dangerous activities. ANS: A PTS: 1 40. Under the Third Restatement of Torts, if the plaintiff is a veterinarian who accepts for treatment a dog from the defendant: a. the defendant is strictly liable if the dog is abnormally danger- ous and it bites the plaintiff. b. the plaintiff, if charging a fee, is beyond the scope of strict liability, even if the dog is abnormally dangerous. c. the doctrine of implied voluntary assumption of risk applies. d. the defendant is strictly liable for any damage to the plaintiff whether or not the dog is considered abnormally dangerous. ANS: B PTS: 1 ESSAY 1. a. How does liability based upon negligence differ from liability based upon strict liability? b. How is liability based upon negligence similar to strict liability? ANS: a. Liability based upon negligence is liability based upon fault. Strict liability is liability without fault. b. Duties created by engaging in certain activities frequently give rise to liability based upon negligence. Strict liability is im- posed for harm resulting from certain activities as determined in light of the place, time, and manner in which the activity is conducted. PTS: 1 2. What is the difference between contributory negligence and comparative negligence? Why have so many states adopted comparative negligence? ANS: Contributory negligence is a plaintiff's failure to exercise reasonable care, which is a legally contributing cause along with the defendant's negligence in causing the plaintiff's harm. It is normally a complete bar to the plaintiff's recovery. Comparative negligence is a more recent doctrine that allows a jury to apportion fault between parties. States have adopted compara- tive negligence to avoid the harshness of the contributory negligence doctrine. PTS: 1 3. Define "emergencies" as it affects tort law and explain how a defendant’s negligence creating an emergency affects liability in the situation. ANS: An emergency in tort law is defined as a sudden and unexpected event that calls for immediate action and permits no time for deliberation. In determining whether a defendant’s conduct is reasonable, the law takes into consideration the fact that he was at the time confronted with a sudden emergency. However, if a defendant's own negligent or tortious conduct created the emergency, he/she is liable for the consequences of this conduct even if he/she acted reasonably in the resulting emergency situation. PTS: 1 4. What is contributory negligence? ANS: Contributory negligence is defined as conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm. PTS: 1 5. What is the reasonable person standard? How is it applied to each of the following? a. Children b. Persons with physical disabilities c. Persons who are mentally retarded d. Professional people with advanced degrees and training, such as doctors, lawyers, and accountants e. Persons acting in emergency situations f. Persons who violate statutory duties a. Children b. Persons with physical disabilities c. Persons who are mentally retarded d. Professional people with advanced degrees and training, such as doctors, lawyers, and accountants e. Persons acting in emergency situations f. Persons who violate statutory duties ANS: The reasonable person is a fictitious individual who is always careful and prudent and never negligent. The reasonable person standard is external and objective. a. Children must conform to the standard of a reasonable person of like age, intelligence, and experience under like circum- stances. b. The standard is that of a reasonable person under like disabili- ty. c. A mentally retarded person is held to the standard of conduct of a reasonable person who is NOT mentally deficient. d. Persons who practice a profession are held to the same care and skill normally possessed by members in good standing of their profession e. Emergencies are taken into consideration. The standard of care is that of a reasonable person under the circumstances, and the emergency is considered to be part of the circum- stances. f. If the statute is found to be applicable, the majority of courts hold that an unexcused violation is negligence per se; that is, it is conclusively negligent conduct. PTS: 1 6. Think about and then discuss why, in your analysis, the reasonable standard of care differs for the following categories of individuals: children, persons with physical disabilities, persons with mental disabilities, people with superior skill or knowledge, people in emergency situations, and those who violate statutory duties. Is there any logic on which to base these differences because of societal need and expectations? Does justice demand a different result? Why would the courts make these distinctions? ANS: The courts have not been merely arbitrary in coming to the distinctions. The distinctions are based on what a reasonable person can expect from such individuals, what usually occurs in the majority of situations, justice, and the perennial fear the courts have of being flooded by cases that have no solution. a. Children vary in their capabilities, responsibilities, and what their parents will allow them to do. Third parties dealing with children who may be negligent deserve some protection. However, minor children cannot be held to the same standards as adults. Generally, the third person is aware of dealing with a child and can respond accordingly. In the case of a child performing an adult activity, a third person's expectation can understandably be that the child should behave as the adult would. b. People who deal with others with physical disabilities are generally put on notice by the physical appearance of the disabled person that they are indeed dealing with someone whose physical capabilities will be different from those who are not physically challenged. Therefore, parties dealing with physically challenged people can react accordingly to protect themselves from harm or at least make adjustments in their actions. Example: If you left your child at a day care with a caregiver who was confined to a wheelchair, you would be on notice and assume the risk that, without taking additional precautions, the provider may not be able to do some physical activities that may be necessary in some emergencies. c. In contrast to the above analysis, the fact that persons are mentally retarded or otherwise mentally impaired may not be discernible. Therefore, persons dealing with them may not be on notice of their capabilities. The courts are concerned also about the floodgates problem: People may use mental impair- ment as a defense in the extreme, i.e., "My I.Q. is a few points below what is average for childcare providers in this country and so I should be excused from all liability," or "I was under a great deal of stress and suffering from neurosis and so I should have a lower standard of care ascribed to me." d. People with superior skill or knowledge. It would be unjust, a windfall of excusable neglect to ascribe to these people a standard of care lower than their actual knowledge. e. Persons acting in emergency situations. Emergency situations bring to bear their own set of factual circumstances that call for immediate judgment of the actions involved. It would be unjust to ignore the unique pressures, factual circumstances, and human differences in emergencies and hold people acting in such situations to the same standard of care as people in calm, reasonable circumstances. f. Persons who violate statutory duties. We are all held to be knowledgeable of the law, whether we are actually aware of a particular law or not. If we were not, people could use as an excuse that they did not know of a law. Once again the flood- gates problem would raise its head. Also, courts generally defer to legislative judgment in creating statutes. If the legisla- ture deemed it of societal value to promulgate a particular statute, then the courts are bound to enforce it. These kinds of statutes are designed to avoid the problems of proof of stan- dard of care and breach of duty. The harm is either of such a serious nature or so prevalent that the legislature has seen fit to treat the problem with a statute. a. Children vary in their capabilities, responsibilities, and what their parents will allow them to do. Third parties dealing with children who may be negligent deserve some protection. However, minor children cannot be held to the same standards as adults. Generally, the third person is aware of dealing with a child and can respond accordingly. In the case of a child performing an adult activity, a third person's expectation can understandably be that the child should behave as the adult would. b. People who deal with others with physical disabilities are generally put on notice by the physical appearance of the disabled person that they are indeed dealing with someone whose physical capabilities will be different from those who are not physically challenged. Therefore, parties dealing with physically challenged people can react accordingly to protect themselves from harm or at least make adjustments in their actions. Example: If you left your child at a day care with a caregiver who was confined to a wheelchair, you would be on notice and assume the risk that, without taking additional precautions, the provider may not be able to do some physical activities that may be necessary in some emergencies. c. In contrast to the above analysis, the fact that persons are mentally retarded or otherwise mentally impaired may not be discernible. Therefore, persons dealing with them may not be on notice of their capabilities. The courts are concerned also about the floodgates problem: People may use mental impair- ment as a defense in the extreme, i.e., "My I.Q. is a few points below what is average for childcare providers in this country and so I should be excused from all liability," or "I was under a great deal of stress and suffering from neurosis and so I should have a lower standard of care ascribed to me." d. People with superior skill or knowledge. It would be unjust, a windfall of excusable neglect to ascribe to these people a standard of care lower than their actual knowledge. e. Persons acting in emergency situations. Emergency situations bring to bear their own set of factual circumstances that call for immediate judgment of the actions involved. It would be unjust to ignore the unique pressures, factual circumstances, and human differences in emergencies and hold people acting in such situations to the same standard of care as people in calm, reasonable circumstances. f. Persons who violate statutory duties. We are all held to be knowledgeable of the law, whether we are actually aware of a particular law or not. If we were not, people could use as an excuse that they did not know of a law. Once again the flood- gates problem would raise its head. Also, courts generally defer to legislative judgment in creating statutes. If the legisla- ture deemed it of societal value to promulgate a particular statute, then the courts are bound to enforce it. These kinds of statutes are designed to avoid the problems of proof of stan- dard of care and breach of duty. The harm is either of such a serious nature or so prevalent that the legislature has seen fit to treat the problem with a statute. PTS: 1 7. Jack is a trucker who makes his living moving modular homes. This is a dangerous business in that the portions of the houses once on the truck are wider than the road lanes. Also, Jack frequently has to travel much more slowly than the other vehicles on the road. One day, Jack, on his way to Atlanta with a modular home in tow, found himself approaching two trucks coming from the opposite direction with the words “High Museum Exhibits” on the truck panels. When Jack swerves to avoid a bicyclist, a museum truck runs off the road and tumbles down an embankment. No one is harmed, but the exhibit being transported is damaged. Discuss the various theories of liability that might be applied here and why they would be appropriate. ANS: The first question that needs to be addressed is whether the plaintiff would be successful using the strict liability theory or if simple negligence would be appropriate. In discussing strict liability the student should articulate that Jack was involved in an abnormally dangerous activity. The elements of what constitutes an abnormally dangerous activity would need to be discussed. The student should discuss (a) the high degree of risk or harm involved and (b) that the activity is not common. In discussing negligence, the question becomes whether meeting the museum exhibit truck was foreseeable and whether the museum assumes any risk. The bicyclist may be discussed in the context of whether he would be considered a superseding cause. PTS: 1