Black Letter Law Flashcards
(109 cards)
1
Q
Where a force comes into motion after the defendant’s negligent act and combines with that act to cause injury to the plaintiff, this is known as ____ case.
A
an indirect cause
2
Q
Whether an intervening force will cut off the defendant’s liability for the plaintiff’s injury is determined by ____. If it does cut off the defendant’s liability, it will be a ____.
A
foreseeability; superseding cause
3
Q
A ____ case is one where the facts present an uninterrupted chain of events from the time of the defendant’s negligent act to the time of the plaintiff’s injury.
A
direct cause
4
Q
An ____ case occurs where a defendant’s negligent conduct creates a risk of a harmful result, but an entirely different and totally unforeseeable type of harmful result occurs.
A
unforeseeable harmful results
5
Q
Which of the following is an element of intentional misrepresentation (fraud) but not an element of negligent misrepresentation?
A
scienter
6
Q
“Scienter” is defined as ____.
A
making a false representation with knowledge that it was false or with reckless disregard as to its truth or falsity
7
Q
The elements of intentional misrepresentation (fraud) are:
A
- a misrepresentation by the defendant
- scienter
- an intent to induce the plaintiff’s reliance on the misrepresentation
- causation (actual reliance by the plaintiff on the misrepresentation)
- justifiable reliance by the plaintiff on the misrepresentation
- damages
8
Q
Negligent misrepresentation requires the following elements to be proved:
A
- misrepresentation made by the defendant in a business or professional capacity
- breach of duty toward the particular plaintiff
- causation
- justifiable reliance by the plaintiff on the misrepresentation
- damages
9
Q
If an undiscovered trespasser is injured by a landowner’s wild animal, the ____ must prove ____.
A
trespasser; negligence by the landowner to recover
10
Q
Which of the following is correct regarding intra-family tort immunities in most states?
A
Either spouse may maintain a tort action against the other.
11
Q
A newspaper that publishes a defamatory statement made by a columnist is ____.
A
liable as a primary publisher
12
Q
Each individual who takes part in making the publication is charged with the publication as a ____.
A
primary publisher
13
Q
A newspaper or TV station carrying a defamatory message would be viewed as a primary publisher and held ____.
A
responsible for that message to the same extent as the author or speaker
14
Q
For an interference to be characterized as unreasonable in a nuisance claim the severity of the injury must ____.
A
outweigh the utility of the defendant’s conduct
15
Q
The defendant cannot continue an activity that is a nuisance merely because it was ____.
A
in existence before the plaintiff’s arrival
16
Q
In most states, when a medical provider was negligent before or during a patient’s pregnancy, damages for additional medical expenses may be recovered by the ____ in a wrongful ____ case.
A
parents; birth
17
Q
A ____ cause of action would not expire on the victim’s death.
A
battery
18
Q
In a negligence action, the defendant may be liable for ____ harm.
A
unforeseeable
19
Q
A plaintiff’s economic damages ____ include damages for emotional distress—those are a type of noneconomic damages, like pain and suffering.
A
do not
20
Q
A nuisance action may not be based on ____.
A
products liability
21
Q
The interference with the plaintiff’s right in his land must be ____.
A
substantial and unreasonable
22
Q
The interference will not be characterized as substantial if it is merely the result of the plaintiff’s ____.
A
hypersensitivity or specialized use of his own property
23
Q
Because the interference must be substantial, that means it must be ____.
A
offensive, inconvenient, or annoying to an average person in the community, not merely be offensive to the plaintiff
24
Q
Pleading additional facts to show that a defamatory statement referred to a plaintiff is known as ____.
A
colloquium
25
____ doctrine is not used in most comparative negligence jurisdictions.
the last clear chance
26
____ are not a type of intervening force that is virtually always considered foreseeable.
Acts of God
27
Acts of God is an ____ that will only be considered foreseeable if the defendant’s conduct ____.
independent intervening force; significantly increased the risk of harm from that force
28
Actual malice is defined for defamation purposes as:
knowledge that a statement was false or made with reckless disregard as to its truth or falsity
29
Many states hold the automobile owner vicariously liable for the tortious conduct only of ____.
a family member driving his automobile
30
The defense of consent is not available if:
The plaintiff consented due to a mistake induced by the defendant.
31
If an employee commits a tortious act while on a “frolic,” the employer:
is not vicariously liable
32
The last clear chance doctrine does not apply when the plaintiff is in a position of ____ and the defendant ____ of her predicament.
inattentive peril; should have known
33
As to a defender aiding another person in defense, the defender may be able to ____.
use deadly force
34
In establishing intentional tort liability, a plaintiff is generally not required to prove ____.
malice
35
____, ____, and ____ are generally required to be proved by a plaintiff in establishing intentional tort liability.
an act; intent; causation
35
An act is a ____.
volitional movement by the defendant
36
Specific intent means the actor had the purpose of ____.
bringing about certain consequences
37
General intent means the actor knew with ____ that his actions would ____.
substantial certainty; bring about certain consequences
38
The causation requirement is satisfied by showing that ____.
the conduct of the defendant is a substantial factor in bringing about the injury
39
The defamation defense of absolute privilege requires that statements made during ____.
judicial proceedings bear a reasonable relationship to the proceedings
40
The following elements must be proved to establish a prima facie case for false imprisonment:
(i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area
(ii) intent on the part of the defendant to confine or restrain the plaintiff to a bounded area
(iii) causation
41
A qualified privilege will be lost if the speaker acted with ____.
malice
42
A products liability action based on strict liability does not require ____.
proof of negligence
43
With regard to affirmative duties to act, one who gratuitously acts for the benefit of another is then ____.
under a duty to act like an ordinary, prudent, reasonable person and continue the assistance
44
With regard to a trespass to chattels, intermeddling is defined specifically as conduct that:
directly damages a plaintiff’s chattel
45
With regard to defamation, “actual injury” includes:
(a) economic damages
(b) mental distress or humiliation damages
(c) reputation damages
46
____ is a surrender of the plaintiff’s cause of action against one of the joint tortfeasors.
release
47
Satisfaction occurs when the plaintiff recovers ____.
full payment from one tortfeasor, either by settlement or payment of a judgment
48
Indemnity involves ____.
shifting the entire loss between or among joint tortfeasors
49
____ are available in a products liability case based on an intentional tort, in addition to ____.
punitive damages; compensatory damages
50
____ is a defense to all types of invasion of privacy actions.
consent
51
Most comparative negligence jurisdictions have abolished ____ as a separate defense.
implied assumption of risk
52
For assumption of risk to be available as a defense, the plaintiff must have ____ the risk and ____ assumed it.
known of; voluntarily
53
A plaintiff who ignored a risk or negligently assumed it would be subject to the defense of ____ rather than assumption of risk.
contributory negligence
54
The general rule that no legal duty is imposed on ____ to affirmatively act for the benefit of ____ applies to physicians as well.
any person; other
55
Joint and several liability may apply even when ____.
the plaintiff’s injury is divisible
56
When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is ____ for that injury.
jointly and severally liable
57
A user of the product suing the business that repaired the product is not a valid plaintiff/defendant combination in a ____ action.
products liability
58
(valid plaintiff/defendant combination in a products liability case based on negligence)
Usually, the duty of due care in this type of action arises when the defendant engages in the ____.
commercial supplying of a product
59
(valid plaintiff/defendant combination in a products liability case based on negligence)
Those who repair a product owe a general duty of care, but are not usually ____ for purposes of products liability cases.
“suppliers”
60
A bystander injured by the product suing the assembler of the product also states a valid plaintiff/defendant combination.
The duty of due care is owed to ____ and the assembler of a product is treated as a ____.
any foreseeable plaintiff—user, consumer, or bystander; commercial supplier
61
The purchaser of the product suing the retailer that labeled the product as its own states a valid plaintiff/defendant combination.
A retailer who labels a product as the retailer’s own or assembles a product from components manufactured by others is ____, even though the retailer is ____.
liable for the negligence of the actual manufacturer; not personally negligent
62
If a jurisdiction has adopted ____, a driver may be vicariously liable for the tortious conduct of someone driving her car with her permission as long as the driver was a member of her family or household.
the family car doctrine
63
An invasion of privacy may be shown even without highly offensive conduct through ____.
appropriation of a person’s picture or name for commercial purposes
64
To establish a prima facie case for appropriation by a defendant of a plaintiff’s picture or name for the defendant’s commercial advantage, only one element need be proved:
The defendant’s conduct need not be ____ to a reasonable person.
unauthorized use by the defendant of a plaintiff’s picture or name for the defendant’s commercial advantage
highly offensive
65
The right of privacy is a personal right and does not extend to ____.
(a) members of a family
(b) corporations
66
The driver of an automobile owes a rider a duty of ____.
ordinary care
67
If the plaintiff establishes res ipsa loquitur, it will have the following effect:
a directed verdict will not be given for the defendant
68
If a jurisdiction treats the violation of an applicable statute as negligence per se, this means that there is ____.
a conclusive presumption of duty and breach of duty
69
An action for loss of services or consortium may be brought by ____ for injuries to ____ caused by the defendant’s tortious conduct.
a spouse or parent; a spouse or child
70
In a state retaining contributory negligence rules, the plaintiff’s contributory negligence is a defense in a strict liability action if he ____.
knew of the danger and his unreasonable conduct was the very cause of the dangerous activity miscarrying
71
____ of any type is a good defense to strict liability in contributory negligence states.
assumption of risk
72
In a wrongful death action, a defense against a potential beneficiary ____.
is analyzed under the jurisdiction’s comparative negligence rules
73
In a wrongful death action, a defense against a potential beneficiary is analyzed under the jurisdiction’s comparative negligence rules.
Thus, the total damage award assessed by the jury will be ____.
reduced by the amount withheld from the beneficiary
74
A court likely will not permit a defendant to raise an assumption of risk defense when:
risk has been assumed by a disclaimer from a common carrier
75
The right of contribution among tortfeasors ____.
does not apply against a tortfeasor who is immune from liability
76
Whether an activity is abnormally dangerous is a question of law that ____ decides.
the court
77
An owner or occupier of land has a duty to ____.
warn a licensee of or make safe a dangerous condition known to him that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover
78
One will have an affirmative duty to act to assist another when she ____.
puts the other in peril by her innocent conduct
79
In an action for invasion of the right to privacy, the plaintiff need only plead ____ as damages.
emotional distress or mental anguish
80
A manufacturing defect occurs when a product ____, but also ____.
emerges from a manufacturing process not only different from the other products; more dangerous than if it had been made the way it should have been
81
A design defect occurs when ____, but have ____.
all the products of a line are made identically according to manufacturing specifications; dangerous propensities because of their mechanical features or packaging
82
____ can be considered a type of information defect. A product must have ____.
an inadequate warning; clear and complete warnings of any dangers that may not be apparent to users
83
Presumed damages may be recovered for a purely private concern even if ____.
malice is not established
84
To establish a prima facie case for invasion of privacy for publication of facts that place a plaintiff in a false light, ____ must be proved.
Publication of facts placing plaintiff in a false light.
85
If the lessor voluntarily decides to make repairs on the premises, even though under no obligation to do so, he is ____. It is not necessary that his negligent repairs ____.
liable if he does so negligently; make the condition worse
86
If a defamation involves private figures but a matter of public concern, there can be ____.
no liability without fault
87
A products liability case based in negligence, ____ will not cut off the defendant’s liability.
an intermediary’s negligent failure to discover a defect
88
Which of the following generally is recoverable as damages in a negligence action?
Damages that were recouped from insurance or other sources.
89
A private nuisance action requires a showing that ____.
the defendant’s interference with the use and enjoyment of the plaintiff’s property was unreasonable
90
Intentional infliction of emotional distress requires proof that:
(i) conduct was extreme and outrageous
(ii) conduct was intentional or at least reckless
(iii) severe emotional distress resulted
91
Under traditional rules, plaintiff’s contributory negligence is a ____; it ____ plaintiff’s right to recover.
complete defense to negligence; completely bars
92
If a plaintiff is a member of a group, and a defamatory statement is made against the group, the plaintiff can ____.
recover if the group is small
93
Punitive damages generally are not recoverable in negligence cases, unless the defendant’s conduct was ____.
reckless, malicious, or willful and wanton
94
A duty of care is generally not owed to a rescuer, unless the defendant ____.
negligently put herself or a third person in peril
95
A commercial supplier may avoid liability for injuries caused by a defective product if ____.
the defect arose after the product left the supplier’s control
96
A party held vicariously liable may seek ____ from the party who actually caused the damage.
indemnification
97
Unlike with a products liability action based on negligence, in a case based on strict liability, one may recover ____.
only against a commercial supplier
98
Which one of the following types of common law defamation requires pleading and proof of special damages?
Slander not falling into one of the four per se categories.
99
____ are considered commercial suppliers and therefore potential defendants in a ____ case.
wholesalers, assemblers, and parts manufacturers; products liability
100
A statement that is not defamatory on its face requires pleading both ____ to be actionable
inducement and innuendo
101
To establish a prima facie case of strict liability, the following elements must be shown:
1. nature of the defendant’s activity must impose an absolute duty to make safe
2. dangerous aspect of the defendant’s activity must be the actual and proximate cause of the plaintiff’s injury
3. plaintiff must suffer damage to person or property
102
Ordinarily, when the owner of realty leases the entire premises to another, the duty to maintain the premises to avoid unreasonable risk of harm to others is owed by the __________.
lessee
103
Transferred intent may be invoked only when the tort intended and the tort that results are both within the following:
- assault
- battery
- false imprisonment
- trespass to land
- trespass to chattels
104
At common law, ____ was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct.
no liability
105
____ create a cause of action in favor of any third person injured by the intoxicated vendee.
"dramshop acts"
106
Conversion is the ____.
intentional interference with the plaintiff’s right of possession in the chattel that is serious enough to warrant that the defendant pay the full value of the chattel
107
Conversion will be found if the defendant was ____.
using the chattel without permission and it was accidentally damaged
108
The remedy for conversion is ____.
the fair market value of the chattel at the time and place of conversion
