Preview Extract
CHAPTER 6-NEGLIGENCE AND STRICT LIABILITY
TRUE/FALSE
1. Palsgraf v. Long Island Railroad Co. addressed the issue of furnishing alcohol to minors.
Answer: False
2. A landowner's highest duty is owed to licensees.
Answer: False
3. Courts have ruled that negligently retaining a violent employee is a tort.
Answer: True
4. A defendant who engages in setting off fireworks at a fully licensed Fourth of July show is
liable for harm that results from the activity only if the plaintiff proves the harm was
foreseeable
Answer: False
5. Res ipsa loquitur shifts the burden of proof from the plaintiff to the defendant.
Answer: True
6. The doctrine of contributory negligence is followed in most states.
Answer: False
7. While hunting, Roger enters Adele’s property without permission and is injured by falling
into a ditch that was obscured by the underbrush. Under the common law, Adele is liable for
Roger’s injuries.
Answer: False
8. Most state legislatures have passed legislation to reimburse crime victims directly through
the state government.
Answer: False
9. Tort law is not concerned with how to respond to injury caused by criminals, as this would
be addressed by criminal law.
Answer: False
10. Most states recognize some form of comparative negligence.
Answer: True
11. Kenneth was exposed to radiation on his job in an environmental cleanup. In a lawsuit
against his employer, the court must decide the full extent of both present and future damages
rather than allowing Kenneth to return to court years later if medical problems develop at that
time.
Answer: True
12. A sports fan, injured by a hockey puck that flew into the stands during an NHL game,
would be subject to the defense of assumption of the risk in a suit to recover for her injuries.
Answer: True
13. If the law denies all liability for harm done by tortious or criminal activity, no one will
have to pay for the harm.
Answer: False
14. Due to dram shop laws, commercial establishments that serve alcohol bear some liability
for injuries caused by their intoxicated patrons.
Answer: True
15. In a strict liability case, the courts still consider if the defendant acted in a reasonable and
prudent manner.
Answer: False
16. Silas asks his friend Shelby to come to his property to go fishing at his pond. If he fails to
warn her that the dock has a rotten spot and she falls through and is injured, Silas would be
held liable in most states.
Answer: True
17. An economic study has concluded that dram shop laws are effective in reducing underage
drinking, over-intoxicated drinkers and bar employee drunkeness.
Answer: True
MULTIPLE CHOICE
1. In a negligence case, the plaintiff must establish:
a. duty, strict liability, causation, and injury.
b. mens rea, breach, foreseeable harm, and injury.
c. duty, actus reus, foreseeable harm, and causation.
d. duty of due care, breach, causation, foreseeable harm, and injury.
Answer: D
2. In most states dram acts apply to:
a. liquor stores, bars, and restaurants but not to social hosts.
b. liquor stores, bars, restaurants and to social hosts.
c. social hosts, liquor stores, and bars.
d. None of the above.
Answer: A
3. Annette drove through an intersection without looking and hit Vincent's car that he had
driven into the intersection without obeying a stop sign. Annette sued Vincent. The jury found
that Annette’s fault contributed 20 percent to the collision and determined that her total loss
was $100,000. Under comparative negligence, the jury should award Annette:
a. $20,000.
b. $80,000.
c. $100,000.
d. nothing.
Answer: B
4. Negligence concerns harm that:
a. is unforeseeable.
b. arises intentionally.
c. arises by accident.
d. is always substantial.
Answer: C
5. In Hernandez v. Arizona Board of Regents, the court held that individuals who:
a. intentionally provide alcohol to minors can be liable for negligence to injured third parties.
b. intentionally provide alcohol to minors cannot be held liable for negligence to injured third
parties.
c. carelessly provide alcohol to minors can be held liable for damages for resulting injury to
third parties.
d. none of the above.
Answer: C
6. Bob, a weak swimmer, ignored warning signs in a recreational swimming area and went
into deep water. He soon grew tired and realized that he could not make it back to shore.
Seeing Kelly, he cried out for help. Kelly, however, ignored the pleas. Bob was finally saved
by Dorothy, but suffered brain damage from being submerged during the ordeal. Bob now
sues Kelly for negligence for failing to try to save him. Bob will:
a. prevail because society places a duty on people to help each other and Kelly breached this
duty, resulting in Bob's injury.
b. lose because Kelly had no legal duty to rescue him.
c. lose even though Kelly had a legal duty to save him, since Bob will not be able to prove
that Kelly's failure to act was the proximate cause of his injuries.
d. lose because a reasonable person could not have foreseen that someone in a recreation area
could not swim well.
Answer: B
7. One morning, Miles placed a thumbtack on the chair of the office manager where he
worked. He had no quarrel with the office manager, but thought this would be funny. Two
days after sitting on the tack, the office manager was hospitalized with an infection caused by
the tack. Which of the following is correct?
a. Miles actions were negligent.
b. No tort has been committed.
c. Miles committed an intentional tort.
d. Miles is strictly liable.
Answer: C
8. A plaintiff sues in negligence but has no direct proof that the defendant behaved
unreasonably. Which of the following is most likely to help the plaintiff?
a. Res judicata.
b. Stare decisis.
c. Res ipsa loquitur.
d. Mens rea.
Answer: C
9. Wayne worked in an office. He had no criminal record, had never had a complaint made
against him about his work or his conduct, and had been a faithful employee for nearly 20
years. One day, Wayne followed his supervisor to his home and fatally shot him. The estate of
the supervisor sued the company, claiming it should have been aware of Wayne's growing
frustration with work. The company's best defense will be that:
a. there was no way to foresee that the incident would happen.
b. the incident occurred away from the office.
c. the killing was the result of a personal conflict between Wayne and the supervisor.
d. even if the company had been aware of Wayne's difficulty with his supervisor, Wayne did
not have any criminal history.
Answer: A
10. Which of the following acts resulting in injury would be negligence per se?
a. Janet driving 40 mph over the posted speed limit.
b. Ted keeping explosives in his private, locked garage without complying with state law
regulating the storage of such materials.
c. A retailer selling glue containing benzene to a 14-year-old boy in violation of state law.
d. All the above acts are negligence per se.
Answer: D
11. Which of the following statements regarding a negligence case is correct?
a. A plaintiff must show that the defendant's act was both the factual cause of her injury as
well as a foreseeable injury.
b. A plaintiff must show that the defendant's act was the factual cause of her injury even if the
injury was not foreseeable.
c. A plaintiff must show that the defendant's act created a foreseeable danger even if it was
not the factual cause of her injury.
d. A plaintiff does not have to show that the defendant's act either created a foreseeable
danger or that the act was the factual cause of her injury.
Answer: A
12. Under a state law, a dog owner is absolutely liable to any person who is injured by the
dog. This is an example of:
a. negligence per se.
b. strict liability.
c. res ipsa loquitur.
d. negligence.
Answer: B
13. If a court applies res ipsa loquitur:
a. the plaintiff needs to prove the case by a preponderance of the evidence.
b. the plaintiff must prove the case by clear and convincing evidence.
c. the defendant has the burden of proving he or she is not liable.
d. the defendant is strictly liable.
Answer: C
14. Kelley went ice skating on a neighbor’s pond, but she fell through a thin area into icy
waters. Kelley did not have permission to be on the property, and the neighbor did not even
know that she was there. Is the neighbor liable for Kelley’s injuries?
a. Yes. The neighbor should have posted “thin ice” notices.
b. No. Kelley was a trespasser and the neighbor could only be held liable for intentionally
injuring her or for gross misconduct.
c. It may depend on Kelley’s age.
d. Yes, the neighbor is strictly liable.
Answer: C
15. Kyle was eating clam chowder soup in a restaurant when a very small piece of bone
lodged in his throat. Fortunately, he was able to remove the bone with his fingers. However,
he was upset by the incident and sued the restaurant for negligence. The most likely result
would be:
a. Kyle will not collect any damages since he did not sustain any damages.
b. Kyle will collect damages as bones in chowder are common.
c. Kyle will collect damages if he proves it was possible to prevent tiny fish bones from being
present in clam chowder.
d. Kyle will collect damages, as res ipsa loquitur applies.
Answer: A
16. Phillip was waiting for a bus at a bus stop. Across the street and down the block, a
mechanic negligently overinflated a tire he was intending to put onto Marsha’s pickup truck.
The exploding tire injured Marsha and frightened a neighborhood dog, which ran down the
street and knocked Phillip down, injuring his knee. Phillip sued the mechanic. In applying the
Palsgraf v. Long Island Railroad Co. decision to this case, Phillip would:
a. win because the mechanic was negligent in overinflating the tire, which led to Phillip’s
injury.
b. win based on negligence per se.
c. lose because the court would apply the doctrine of res ipsa loquitur.
d. lose because, although the mechanic’s conduct was negligent toward Marsha, it was not a
wrong in relation to Phillip, who was far away. The mechanic could not have foreseen injury
to Phillip and therefore had no duty to him.
Answer: D
17. In a comparative negligence state, if the plaintiff in a negligence lawsuit is found to be 30
percent negligent, the plaintiff would recover:
a. 70 percent of the damages.
b. all of the damages.
c. none of the damages.
d. 30 percent of the damages.
Answer: A
18. The Supreme Court of California in Wiener v. Southcoast Childcare Centers, Inc.:
a. ruled that it did not matter whether the driver of the vehicle acted negligently or with
criminal intent, the risk of harm from an unsafe fence was the same and defendants had a
duty to make the fence stronger.
b. required application of a different standard for third-party criminal acts versus acts of
ordinary negligence.
c. determined that foreseeability was not at issue in this case.
d. placed importance on the fact that the child care facility had been the target of violence in
the past.
Answer: B
19. A customer in a restaurant would be considered ________ to whom the restaurant owner
owes a duty ________.
a. a licensee; to warn of known dangers.
b. an invitee; of reasonable care.
c. a social guest; only to avoid intentionally injuring him.
d. none of the above.
Answer: B
20. Tommie, a six-year-old child, was seriously injured when he stuck a fork into an electrical
outlet. His parents sued the restaurant where the incident occurred, claiming it should have
had child protective guards on the outlets. Whether the restaurant is liable will be dependent
upon whether:
a. the incident was reasonably foreseeable.
b. the parents exercised enough supervision of their child.
c. this is negligence per se.
d. this is an ultrahazardous activity.
Answer: A
21. Laura, a brain surgeon, committed a negligent act when she ran a red light and injured
Randy, a pedestrian crossing the street. Randy was a mentally impaired adult.
a. The “reasonable person” standard does not apply to Laura since she is an extraordinary
person.
b. Both Laura’s and Randy's conduct will be based on the "reasonable person" standard.
c. The "reasonable person" standard does not apply to Randy since he is mentally impaired.
d. The "reasonable person" standard does not apply to Laura nor Randy given their respective
degrees of extreme intelligence (one high and one low).
Answer: B
22. Punitive damages are awarded:
a. for past and future medical expenses.
b. to repay the victim for losses suffered.
c. to punish the defendant.
d. for past and future pain and suffering.
Answer: C
23. The test of “foreseeability” is generally used to determine the existence of which element
of a negligence case?
a. Duty of due care.
b. Breach.
c. Factual cause.
d. Injury.
Answer: A
24. Which of the following elements is not necessary to apply the doctrine of res ipsa
loquitur?
a. An ultrahazardous activity is involved.
b. The defendant had exclusive control of the thing that caused the harm.
c. The harm would normally not have occurred without negligence.
d. The plaintiff had no role in causing the harm.
Answer: A
25. Don was driving his truck when a board fell out of the truck bed and onto the road. Alice,
who was driving closely behind Don's truck, tried to avoid the board, swerved and struck a
telephone pole, causing her severe injuries. Which of the following is correct?
a. Don is strictly liable to Alice for her injuries.
b. In a comparative negligence state, the actions of Don and Alice will be weighed to
determine liability.
c. Don was not negligent in allowing the board to fall out of his truck.
d. Don is engaging in ultrahazardous activity.
Answer: B
ESSAY
1. Discuss the concepts of contributory negligence and comparative negligence.
Answer: Contributory negligence is a defense that can be used by a defendant to avoid
liability. Most states have discarded this concept; however, if allowed, even if the plaintiff
were one percent responsible for the accident, she cannot recover from the defendant.
Comparative negligence is used to pro rate each party's fault in a negligence case. In many
states, if the plaintiff is more than 50 percent responsible for the accident, she cannot recover.
If the plaintiff is 50 percent or less responsible, she is allowed to collect relative to her degree
of fault. Thus, if the plaintiff were 30 percent responsible for her accident and sustained
$100,000 worth of injuries, she could recover $70,000 (70 percent) from the defendant.
2. List and discuss the elements necessary to establish negligence.
Answer: For there to be a successful lawsuit for negligence, five elements must be
established: duty of due care, breach, factual cause, foreseeable harm, and injury. Duty is the
responsibility to use reasonable care not to injure others around you. If the defendant could
foresee that his misconduct would injure a certain person, he has a duty to that person.
Normally, there is no duty to avoid the injury of others through nonconduct, unless there is a
special relationship. Breach is conduct that fails to meet the standard of reasonable care
imposed if there is a duty to the injured party. Factual cause requires that the defendant's
conduct, at least in part, actually caused the injury. Foreseeable harm requires that the risk of
harm was reasonably foreseeable and not so remote or bizarre that a reasonable person would
never have expected it to happen. And finally, injury: the plaintiff must have suffered injury
to his or her person or property to recover. The injury must be genuine, not speculative.
3. Mavrex, Inc. received an application from Larry and, since his written qualifications
seemed to meet a pressing current need, they hired him without checking his references or
prior records. Actually, Larry had been in prison for murder several years earlier. Tom, a
long-time Mavrex employee, angered Larry when Tom tried to tell Larry how to do his job.
Larry attacked and injured Tom. If Tom sues Mavrex, what would his cause of action be, and
what elements would Tom need to prove to win his case?
Answer: Tom’s cause of action would be negligent hiring. Companies can be liable for hiring
or retaining violent employees. The company should check records, including criminal
records, and contact personal references before hiring employees. To win a case in
negligence, Tom would need to prove five elements: a duty of care on the part of Mavrex to
Tom, a breach of this duty, factual cause, foreseeable harm, and injury. The test for a duty of
care is generally “foreseeability.” If the defendant could have foreseen injury to a particular
person, there is a duty to him. To prove the second element of negligence, breach of duty,
courts apply a reasonable person standard. The third element, factual cause, means that
Mavrex’s conduct actually caused Tom’s injury. The fourth element, foreseeable harm, means
it was foreseeable that conduct like Mavrex’s might cause the type of harm that did result.
The fifth element, injury, means that Tom actually has been hurt.
4. In negligence cases the courts often refer to the term "reasonable person." What is meant
by this term?
Answer: The reasonable person is used to establish the standard of conduct of an average
person under the same circumstances. It is, in essence, a benchmark for proper conduct of a
person under a given factual pattern. For example, if a person claims he accidentally backed
his car into the path of an oncoming car, the jury will decide if the tortfeasor/defendant acted
"as a reasonable person" backing his car out of a parking space into a traveled roadway. The
jury will ask itself, "what would the reasonable person have done or not done in such a
situation?" A reasonable person would slowly back up, look carefully to see if cars were
coming, and be driving in an attentive manner. Thus, the defendant's conduct is measured
against what a reasonable person would have done if she had been in the same situation as the
defendant.
5. A contractor used dynamite to loosen a rocky hillside. The blast from the dynamite caused
a house foundation to crack. The house was located over a half-mile away from the dynamite
site. The contractor was careful when using the dynamite and no allegation of negligence is
made. However, the house owner claims the contractor is liable for damage to the foundation.
Is the house owner correct? Explain.
Answer: Yes. The contractor is liable under the concept of strict liability. Generally speaking,
strict liability, also known as liability without fault, applies if a person engages in dangerous
activity that results in damage to property or personal injury. The homeowner does not have
to prove duty, breach, or foreseeable harm. The fact that a person was very careful in carrying
out the dangerous activity is not relevant. The only issue is whether the dangerous activity
was the direct cause of the property damage or personal injury. In essence, strict liability is a
trade-off, allowing for people to engage in dangerous activity but at the same time requiring
them to be totally responsible if a person sustains damages as a result of that activity. It is
incumbent on the person to obtain sufficient liability insurance if he is going to engage in
dangerous activity so he will be able to provide proper compensation to any person damaged
by the activity.
6. On Monday, Travis took his four-wheeler to Reppart’s Equipment & Service for repair
because the steering was not working properly. On Friday he called Reppart’s to see if his
four-wheeler was ready because he wanted it for a weekend trip. Reppart’s said they had done
the major repairs but that the steering system still needed some work and they needed another
few days to finish the repairs. Travis told them he would pick the four-wheeler up and use it
for the weekend and then bring it back to have them finish their work. While riding with
friends on the weekend, Travis ran into someone because the steering stuck and he couldn’t
swerve to avoid them. Discuss how a court would determine causation in a negligence suit
against Travis.
Answer: Courts look at two issues to determine causation: Was the defendant’s behavior the
factual cause of the harm? Was this type of harm foreseeable?
If Travis’s breach of duty physically led to the ultimate harm, it is the factual cause. Since
Travis knew the repairs were not completed, his unreasonable behavior in using the fourwheeler was the factual cause of the harm to the plaintiff.
For Travis to be liable, the type of harm must have been reasonably foreseeable. Travis could
easily foresee that a bad steering system could cause an accident while he was riding. He
need not have foreseen the exact results, but he could foresee the general type of harm
involving defective steering. Therefore, in this case the factual cause and foreseeable harm
elements of a negligence suit against Travis would have been met.
Test Bank For Introduction to Business Law
Jeffrey F. Beatty, Susan S. Samuelson
9781133188155
