Test Tort Flashcards
What is the correct standard of care in extraordinary circumstances?
Reasonable care under those circumstances
Extraordinary circumstances include situations like a violent storm, no visibility, or slippery roads.
Fill in the blank: The correct standard of care is ______ under extraordinary circumstances.
reasonable care
True or False: The standard of care changes based on the circumstances.
True
The standard of care is adjusted to be reasonable based on the specific circumstances at hand.
What is the primary question to ask when evaluating a defendant with a major disability?
Would a reasonable defendant with that disability have acted the same?
Provide an example of a disability that would affect reasonable actions.
Blind people do not drive cars.
Fill in the blank: When assessing a defendant’s actions, consider their _______.
[major disability]
True or False: The actions of a defendant with a disability are judged the same as those without disabilities.
False
What is a key element to consider in legal cases involving disabilities?
The reasonableness of the defendant’s actions given their disability.
What type of individual will be present when examiners are testing on the adult activity rule?
A teenager
What type of individual will be present when examiners are testing on the child standard of care?
A younger child
What is the significance of the adult activity rule in examinations?
It assesses the behavior and responsibilities of a teenager
What is the significance of the child standard of care in examinations?
It assesses the behavior and responsibilities of a younger child
Fill in the blank: You will see a _______ when the examiners are testing on the adult activity rule.
teenager
Fill in the blank: You will see a _______ when the examiners are testing on the child standard of care.
younger child
What phrase will examiners use to indicate they are testing on special duty rules for landowners?
“under the traditional liability rules for landowners”
What is the significance of the phrase used by examiners regarding landowners?
It indicates a focus on special duty rules for owners and occupiers of land.
What must be understood when the exam question begins with ‘under the traditional liability rules for landowners’?
It signals the need to apply special duty rules for landowners.
Fill in the blank: The examiners will preface the question with ‘_________’ if they are testing on special duty rules for owners and occupiers of land.
‘under the traditional liability rules for landowners’
What is the Eggshell Plaintiff Rule?
If defendant is liable for some injury to plaintiff, defendant is liable for all of the plaintiff’s physical injury damages
This rule emphasizes that the defendant is responsible for the full extent of the plaintiff’s injuries, even if those injuries were not foreseeable.
What does it mean that ‘The extent of the plaintiff’s harm need not be foreseeable’?
Defendant is liable for all damages regardless of foreseeability
This highlights that the defendant cannot argue that the severity of the plaintiff’s injuries was unexpected.
What does ‘The defendant takes the plaintiff as she finds him’ imply?
The defendant is responsible for all injuries, considering the plaintiff’s unique vulnerabilities
This phrase reinforces the principle that the defendant’s liability is based on the actual condition of the plaintiff at the time of the injury.
Who is subject to strict liability actions for defective products?
Only commercial suppliers of defective products
This means that manufacturers and regular sellers who deal in goods are held to a higher standard than casual or one-time sellers.
What can a one-time seller of a product be sued for?
Negligence
A one-time seller does not face strict liability but can be held accountable if they acted negligently in the sale of the product.
What is one defense to strict products liability?
Plaintiff’s failure to establish prima facie case
A prima facie case is the establishment of a legally required rebuttable presumption.
What is another defense to strict products liability?
Assumption of risk where plaintiff knew of risk and voluntarily encountered it
This defense applies when a plaintiff understands the risks involved and chooses to proceed anyway.
What constitutes misuse in the context of strict products liability?
Misuse of the foreseeable product if the misuse was not reasonably foreseeable
This defense applies when the plaintiff uses the product in a way that was not anticipated by the manufacturer.
What is res ipsa loquitur?
A legal doctrine that allows negligence to be inferred from the nature of an accident or injury in the absence of direct evidence.
It literally means ‘the thing speaks for itself’.
What must a plaintiff establish to deny the defendant’s motion for directed verdict regarding res ipsa loquitur?
The plaintiff must establish res ipsa loquitur or present some other evidence of breach of duty.
This can include evidence such as the defendant’s violation of a statute.
What happens if the plaintiff fails to establish res ipsa loquitur?
The court should grant the defendant’s motion for directed verdict.
This indicates that the plaintiff has not provided sufficient evidence to support their claim.
True or False: Memorizing rules of civil procedure is necessary for questions on res ipsa loquitur.
False.
The focus is on understanding the application of res ipsa loquitur rather than memorizing procedural rules.
In the context of res ipsa loquitur, what is required for the plaintiff to present aside from establishing the doctrine?
Some other evidence of breach of duty.
This could include direct evidence of negligence or statutory violations.
What is the basis for proving negligence in a products case?
Negligence in a products case is proved similarly to standard negligence cases
The plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer’s negligence.
Why is it difficult to hold intermediaries liable for negligence?
Intermediaries can usually satisfy their duty through a cursory inspection
Their negligence in failing to discover a defect does not supersede the original manufacturer’s negligence unless their conduct exceeds ordinary foreseeable negligence.
Who can sue in a negligence case regarding products?
Any foreseeable plaintiff can sue
Privity with the defendant is no longer required.
What types of damages are recoverable in a negligence case?
Physical injury or property damage must be shown
There is no recovery for claims of pure economic loss.
Are disclaimers effective in cases based on negligence?
Disclaimers are irrelevant in cases based on negligence if personal injury or property damages occur
This is similar to strict liability.
What are the two warranties implied in every sale of goods?
- Merchantability
- Fitness for a particular purpose
What does ‘merchantability’ refer to in the context of implied warranties?
Whether the goods are of average acceptable quality and generally fit for ordinary purposes
Goods that are likely to injure users even when handled properly are in breach of this warranty.
What constitutes a breach of warranty?
The product fails to meet the standards of merchantability or fitness for a particular purpose
The plaintiff does not have to prove any fault on the part of the defendant.
What are the two types of causation in negligence cases?
- Actual cause
- Proximate cause
What types of damages are recoverable in warranty breach cases?
Personal injury and property damages are recoverable
Purely economic loss is also recoverable.
What are common defenses in negligence cases?
- Assumption of risk
- Contributory negligence
- Failure to give notice of breach under the UCC
How are disclaimers treated in personal injury cases?
Disclaimers are generally rejected in personal injury cases but upheld for economic loss
What are the theories of representation in product liability?
- Express warranty
- Misrepresentation of fact
What creates an express warranty?
A statement concerning goods that becomes part of the basis of the bargain
An express warranty may also be made in a lease of goods.
Who can sue under express warranty?
Any consumer, user, or bystander can sue
If a buyer sues, the warranty must have been part of the basis of the bargain.
