Final Test

Question 1

Privity

Answer 1

Requirement that the plaintiff must contract directly with the defendant in order to recover for losses.

Question 2

Immunity

Answer 2

Absolute defense derived from the defendant’s status or relationship to the plaintiff.

Question 3

Statute of repose

Answer 3

Statute in product liability cases that limits the time period during which a suit can be filed.

Question 4

Fellow-Servant Rule

Answer 4

Doctrine that shields employers from liability for damages incurred for injuries to an employee due to the negligence of a co-worker.

Question 5

Incidental damages

Answer 5

Loss such as out-of-pocket expenses, incurred by a plaintiff in mitigating the damages caused by the defendant’s breach of warranty.

Question 6

Class action

Answer 6

Lawsuit in which representative members of a large group of injured persons sue on behalf of those injured persons.

Question 7

Subrogation

Answer 7

The right of an insurer to institute suit in the name of the insured against the responsible party to collect monies paid by the insurer to the insured.

Question 8

Last-clear-chance doctrine

Answer 8

Doctrine that allows the plaintiff to recover in a contributory-negligence system despite the plaintiff’s own negligence.

Question 9

Informed Consent

Answer 9

Knowledgeable assent based on disclosure of all relevant facts that allows one to make an intelligent decision.

Question 10

Proprietary function

Answer 10

Function performed by the government that could just as easily be performed by a private entity.

Question 11

Discretionary function

Answer 11

Act of a government employee requiring the use of judgment.

Question 12

Scheduled injuries

Answer 12

Injuries, such as loss of sight or of an appendage, for which stated benefits are paid under a workers’ compensation insurance policy.

Question 13

Umbrella Policy

Answer 13

Policy that provides a secondary source of coverage after the deductible has been paid, usually coordinated with the limits of the underlying policy.

Question 14

Structural Design Defect

Answer 14

Weakness in a product resulting from the manufacturer’s choice of materials that do not make the product reasonably safe.

Question 15

Split-limits coverage

Answer 15

Insurance coverage that sets forth a maximum amount an individual can recover for damages and an aggregate amount available for damages independent of the total claims involved.

Question 16

Abnormally dangerous activity

Answer 16

Activity having a high degree of risk of serious harm that cannot be eliminated with due care and whose value is outweighed by its dangerous attributes

Question 17

Warranty of merchantability

Answer 17

Implied warranty that goods are fit for the ordinary purpose for which they are used.

Question 18

Coordination of benefits

Answer 18

Insurance policy provision precluding payment to the insured if the insured has other insurance available.

Question 19

Manufacturing defect

Answer 19

Product defect arising out of a deviation in the manufacturing process.

Question 20

Contributory Negligence

Answer 20

The defense completely barring plaintiff from recovering against defendant if plaintiff from recovering against defendant if plaintiff contributed to her own injuries to any extent whatsoever. Texas abolished this defense in 1973.

Question 21

Comparative Negligence (Pure)

Answer 21

Plaintiff can recover the percentage of damages caused by the defendant no matter how extensive plaintiff’s own comparative negligence is.
Example: If the plaintiff is 99% at fault, she can still recover 1%.

Question 22

Comparative negligence (Modified or 50% approach)

Answer 22

1. Not as great as standard- Plaintiff can recover as long as her percentage of fault is not as great as that of the defendant.
   Example: The plaintiff can recover as long as her percentage of fault does not exceed 49%.
2. ‘Not greater than’ standard- Plaintiff can recover as long as her percentage of fault is not greater than that of the defendant.
   Thus: The plaintiff can recover as long as her percentage of fault does not exceed 50%. Texas takes this approach but states it in the negative: Plaintiff cannot recover if her own percentage of fault exceeds 50%–that is, if it is 51% or more.

Question 23

Comparative Negligence (Proportionate Responsibility)

Answer 23

Known in Texas as the ‘Modified approach’ which states that a plaintiff cannot recover in a negligence case if her own percentage of fault exceeds 50%–that is, if it is 51% or more.

1. If plaintiff’s percentage of responsibility = 51% or more the plaintiff cannot recover at all.
2. If the plaintiff’s percentage of responsibility = 50% of less: the plaintiff’s recovery is reduced by that percentage.

Question 24

Sovereign and Governmental Immunity

Answer 24

A common law practice that shields federal and state governments from tort liability unless they waive that immunity.

Question 25

No-Fault Insurance

Answer 25

Automobile insurance coverage where the insurance carrier of the vehicle pays for damages to the vehicle’s occupants regardless of whether or not the driver of the vehicle was responsible for the injuries sustained.