Torts Flashcards
Recently Paul, an employee of the Davis Window Company (DWC), was injured by the fault of another driver in an automobile accident while Paul was operating a company vehicle. The company vehicle was damaged. The accident occurred during working hours while Paul was on a mission for his employer. The corporate counsel for DWC has retained you to defend the negligence lawsuit filed by Paul against DWC.
What would be the best defense for DWC?
A. Paul was at fault in causing the accident.
B. Paul’s remedy is limited to worker’s compensation.
C. The other driver is responsible for all damages.
D. The employer has no fault so it is not responsible to Paul.
B. Paul’s remedy is limited to worker’s compensation.
[A is not the best answer because Paul’s fault would go to comparative fault and only reduce, but not eliminate, recovery. C is not the best answer because the fact that the other driver may be completely responsible does not necessarily eliminate worker’s compensation. Instead, there is an offset against the amount collected in worker’s compensation. D is not a defense because worker’s compensation is a no-fault system, so the employer’s fault is not required for recovery. Thus, the best defense is to argue that Paul’s recovery is limited to worker’s compensation and the employer is immune from the lawsuit.]
Perry and his wife, Wilma, were recently involved in a serious automobile accident when another driver rear-ended their automobile. Wilma was not able to get out of the car before it caught on fire. She survived but is on life support and has never regained consciousness since the crash. Perry has been told that she will not survive. Their son, George, and his fiance’, Sally, were in the automobile at the time of the accident but were able to escape with minor injuries. The fiery crash occurred in front of the home of Wilma’s sister, Betty, and brother-in-law, Bill, who were gardening in their front yard. They saw the crash and rushed to the site to assist the occupants of the car. Wilma’s grandparents came upon the scene shortly after the accident and were extremely upset to find Wilma injured.
Which of the following people may assert a claim for mental anguish or emotional distress that they
have suffered as a result of witnessing Wilma’s injuries?
A. Perry, George, Betty, Bill
B. Perry, George, Sally and Wilma’s grandparents
C. Betty and Bill
D. Perry, George, Betty and Wilma’s grandparents
D. Perry, George, Betty and Wilma’s grandparents
[Perry (spouse), George (Wilma’s child), Betty (Wilma’s sister), and Wilma’s grandparents are all listed under La. Civ. Code art. 2315.6. Sally (George’s fiancée) and Bill (brother-in-law) are not listed and may not recover.]
Perry and his wife, Wilma, were recently involved in a serious automobile accident when another driver rear-ended their automobile. Wilma was not able to get out of the car before it caught on fire. She survived but is on life support and has never regained consciousness since the crash. Perry has been told that she will not survive. Their son, George, and his fiance’, Sally, were in the automobile at the time of the accident but were able to escape with minor injuries. The fiery crash occurred in front of the home of Wilma’s sister, Betty, and brother-in-law, Bill, who were gardening in their front yard. They saw the crash and rushed to the site to assist the occupants of the car. Wilma’s grandparents came upon the scene shortly after the accident and were extremely upset to find Wilma injured.
Who may recover wrongful death damages if Wilma dies?
A. Perry and George
B. Perry, George and Betty
C. Perry or George
D. George
A. Perry and George
[Perry and George may recover. Perry (spouse) and George (Wilma’s child) are in the first
category of parties in La. Civil Code art. 2315.2. Other parties are either in a lower category or not
listed, and hence, may not recover.]
Perry and his wife, Wilma, were recently involved in a serious automobile accident when another driver rear-ended their automobile. Wilma was not able to get out of the car before it caught on fire. She survived but is on life support and has never regained consciousness since the crash. Perry has been told that she will not survive. Their son, George, and his fiance’, Sally, were in the automobile at the time of the accident but were able to escape with minor injuries. The fiery crash occurred in front of the home of Wilma’s sister, Betty, and brother-in-law, Bill, who were gardening in their front yard. They saw the crash and rushed to the site to assist the occupants of the car. Wilma’s grandparents came upon the scene shortly after the accident and were extremely upset to find Wilma injured.
If as a result of the automobile accident, Wilma survives for several days and incurs medical expenses
and suffers conscious pain and suffering, who can assert a claim for the injuries she would have had a
right to recover?
A. Perry and George
B. Perry
C. George
D. Wilma’s parents, Perry and George
A. Perry and George
[Perry and George may assert a claim. This is a survival action governed by La. Civil Code art.
2315.1 and the result is exactly the same as in Question 3 above.]
Under the Louisiana Medical Malpractice Statute, what is the limit of recovery by one person against
a physician who is a Qualified Health Care Provider?
A. $100,000
B. $500,000
C. $400,000
D. $1,000,000
A. $100,000[The cap under the Medical Malpractice Act is $500,000. Each Qualified Health Care Provider is
responsible for the first $100,000 in damages and the Patient Compensation Fund is responsible for
the balance. La. Rev. Stat. 40:1299.42(B).]
Under the Louisiana Medical Malpractice Statute what is the cap or limit of recovery by one person in
a medical malpractice case against the Louisiana Patient’s Compensation Fund?
A. $100,000
B. $400,000
C. $400,000 plus unlimited future medicals
D. $100,000 plus unlimited future medicals
C. $400,000 plus unlimited future medicals
[$400,000 plus unlimited medical futures. The cap under the Medical Malpractice Act is
$500,000. Each Qualified Health Care Provider is responsible for the first $100,000 in damages and
the Patient Compensation Fund is responsible for the balance. La. Rev. Stat. 40:1299.42(B).]
Under the Louisiana Medical Malpractice Statute, a medical review panel consists of the following
members:
A. 3 physicians B. 3 attorneys C. 2 physicians and 1 attorney D. 3 physicians and 1 attorney E. None of the above.
D. 3 physicians and 1 attorney
[Three physicians and one attorney as called for in La. Rev. Stat. 40:1299.47(C).]
If there is only one defendant in a medical review panel, what are the requirements for the health care
providers who serve on the panel?
A. All panelists must be of the same class and specialty; B. The panelists may be of any classification if they are licensed by the state of Louisiana; C. The panelists have to be residents of Louisiana; D. The panelists have to be knowledgeable in the field of medicine practiced by the doctor.
A. All panelists must be of the same class and specialty; [All panelists must be of the same class and specialty as called for in La. Rev. Stat. 40:1299.47(C)(3)(j).]
What is the total amount recoverable by a plaintiff in Louisiana under the Medical Malpractice Act if two doctors, who are both qualified healthcare providers, are found liable for malpractice?
A. $200,000
B. $500,000 plus unlimited future medicals
C. $600,000 plus unlimited future medicals
D. $200,000 plus all special damages
B. $500,000 plus unlimited medical futures
((BARBRI))
Jennifer was injured as she left Red’s Bar when a railing on the outside stairway broke away from the building wall, causing her to fall. She duly commenced an action against Red’s Bar to recover damages for personal injuries suffered in her fall, alleging negligence on the part of the club in maintaining the stairway. Red’s Bar interposed a timely answer to Jennifer’s complaint consisting of a general denial. At the trial of the action, Jennifer presented evidence that (i) Red’s Bar owned and occupied the entire building in which the club was located, and (ii) Jennifer had grasped the railing in a normal manner before it broke away from the outside wall. Red’s Bar presented evidence that (i) the railing had been installed according to industry standard, (ii) the railing had been inspected at regular intervals prior to the incident and that it had been found free from defect, (iii) the stairway was on the outside of the building and was accessible to the general public, and (iv) Red’s Bar was open six nights each week, and approximately. 450 people used the stairway on each night that Red’s Bar was open. Would it be appropriate for the court to submit Jennifer’s case to the jury on the theory of res ipsa loquitur?
(a) Yes, because the accident would not have occurred absent Red’s Bar’s negligence.
(b) Yes, because the stairway was within the sole control of Red’s Bar.
(c) No, because there is direct evidence of Red’s Bar’s fault or lack of fault.
(d) No, because Jennifer was the “but for” cause of the railway breaking away from the building.
(c) No, because there is direct evidence of Red’s Bar’s fault or lack of fault.
Res Ipsa Loquitur in Louisiana requires the trial judge to determine whether reasonable minds could differ concerning all three of the following criteria: 1.The injury is of the kind that does not ordinarily occur in the absence of negligence on someone’s par: 2. The evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or of a third person; and 3. The alleged negligence of the defendant must be within the scope of the defendant’s duty to the plaintiff. In addition, in Linnear v. Centerpoint Energy Entex/Reliant Energy, 966 So.2d 36 (La. 2007), the Louisiana Supreme Court ruled that “res ipsa loquitur does not apply where direct evidence is used to explain the accident or injury.” (A) and (D) both address causation, but do not address the standard for res ipsa loquitur. (B) raises one of the requirements for res ipsa loquitur at common law, but the is not one of the requirements in Louisiana. (C) is a correct because there is evidence of regular inspections and the installation of the railing.
((BARBRI))
Stevie, 17 years old, and his younger brother Joey, age 15, climbed over the airport fence to watch airplanes land. On the fence were signs that read, “Danger, No Trespassing.” Once over the fence, the boys started running across the runway. Joey tripped and twisted his ankle. Stevie started to head back to help Joey, but then saw a plane heading toward him. The pilot saw Joey, but was unable to avoid hitting him. Joey was propelled through the air. Stevie ran to Joey, who was conscious for a few moments before dying in Stevie’s arms. Stevie’s parents have come to you to find out whether they may bring an action for negligent infliction of emotional distress on behalf of their son Stevie against the airport. You tell them:
(a) Yes, because Stevie was an immediate family member.
(b) Yes, because Stevie was within the “zone of danger.”
(c) No, because Stevie assumed the risk by climbing over the fence.
(d) No, because there is no evidence of physical injury suffered from the distress to Stevie.
(a) Yes, because Stevie was an immediate family member.
Louisiana Civil Code art. 2315.6 allows parties to bring an action such as this when the plaintiff falls within a certain defined category of parties. Immediate family members are in that list. (B) is incorrect because Louisiana does not apply the “zone of danger” test. (C) is incorrect because Louisiana has eliminated the assumption of the risk defense. (D) is incorrect because physical injury is not necessary for a 2315.6 claim.
((BARBRI))
Defendant’s dog bit Plaintiff while Plaintiff was visiting Defendant’s home. The dog had not threatened or bitten anyone before, but had frequently barked at people. The dog was always enclosed in the kitchen or chained in the backyard.
Can Plaintiff prevail in an action against defendant sounding in either negligence or strict liability?
(a) No, because Defendant had no reason to believe the dog would bite Plaintiff.
(b) No, because Louisiana law does not recognize strict liability claims for injuries caused by animals.
(c) Possibly, in strict liability, because dog owners are strictly liable for injuries caused by their dogs.
(d) Yes, because keeping the dog chained or indoors demonstrated that Defendant was on notice the dog might bite someone.
(c) Possibly, in strict liability, because dog owners are strictly liable for injuries caused by their dogs.
Louisiana Civil Code art. 2321 imposes strict liability upon the owners of dogs. (Note: The standard for all other animals is negligence.) As a result, (B) is an incorrect statement of law. (A) and (D) both address the issue of notice which is a condition for negligence. (C) is correct because the owner will be responsible under a strict liability theory IF the dog posed an unreasonable risk of harm. We really don’t have enough facts to assess whether the dog did represent an unreasonable risk of harm.
((BARBRI))
A woman took her car in for scheduled maintenance. The mechanic certified that the car was in perfect working order. Later that day, the woman was driving beyond the posted speed limit when her brakes failed, causing her car to strike a pedestrian. If the pedestrian brings an action against the mechanic who certified the woman’s car as operable, what will be the probable outcome?
(a) Judgment for the mechanic, because the pedestrian was legally a bystander.
(b) Judgment for the mechanic, because the woman’s negligence was an independent, superseding cause.
(c) Judgment for the pedestrian if the mechanic was negligent in inspecting the car.
(d) Judgment for the pedestrian, because the mechanic was strictly liable in tort.
(c) Judgment for the pedestrian if the mechanic was negligent in inspecting the car.
The pedestrian will prevail if the mechanic was negligent in inspecting and certifying the car. Because the brakes failed soon after the mechanic certified the car, it is highly likely that the mechanic was negligent. There is no strict liability in tort for service transactions, so (D) is wrong. Privity of contract is not required to find liability for negligence, and the pedestrian’s presence on the street makes her a foreseeable plaintiff, so (A) is wrong. (B) is incorrect because this is not a superseding cause situation; the mechanic’s potential negligence would not be cut off by the woman’s foreseeable negligent driving.
((BARBRI))
A woman was driving carefully but with an expired driver’s license, in violation of a statute requiring license renewal. When she stopped at a stop sign, another driver, who was speeding, crashed into her car. The woman suffered injuries and sued the other driver.
The fact that the woman had an expired driver’s license would not affect her claim against the other driver because:
(a) The other driver’s negligence occurred after the woman’s.
(b) The driver should have known that there are some unlicensed drivers on the road.
(c) The prevention of accidents of this sort is not the reason that drivers are required to renew their driver’s licenses.
(d) There is a greater chance of causing injury when a driver speeds than when a person drives with an expired license.
(c) The prevention of accidents of this sort is not the reason that drivers are required to renew their driver’s licenses.
A statutory standard of care will replace the general common law duty of care if the statute was designed to prevent the type of harm suffered by the plaintiff. Here, the woman was driving carefully and stopped at a stop sign when she was hit by a car driven negligently by the other driver. The fact that she was driving with an expired license could not prevent the type of harm that she suffered. Hence, (C) is the best answer because it precludes applicability of the statute altogether. (A) is incorrect because it is irrelevant that the driver’s speeding came after the woman’s failure to renew her license. (B) is incorrect because it is irrelevant whether the driver knew that there are unlicensed drivers on the road. (D) does not state a legally recognized basis for this result.
((BARBRI))
While driving his car down the road, the defendant, who had no history of heart problems, experienced a heart attack. The defendant’s car crossed the center line of the highway, in violation of a motor vehicle statute, and headed directly at a car driven by the plaintiff that was exceeding the speed limit. The plaintiff, seeing the defendant’s car heading toward him, swerved to avoid the collision. In so doing, the plaintiff’s car spun out of control and crashed into a ditch, causing the plaintiff injury. The plaintiff brought suit against the defendant for the injuries sustained in the accident. The jurisdiction retains traditional contributory negligence rules.
The plaintiff will:
(a) Prevail, because the defendant’s act was a substantial factor in causing the plaintiff’s car to swerve.
(b) Prevail, because the defendant violated a statute by crossing the center line.
(c) Not prevail, because the defendant had no prior history of heart trouble.
(d) Not prevail, because the plaintiff was exceeding the speed limit.
(c) Not prevail, because the defendant had no prior history of heart trouble.
The plaintiff will not prevail because the defendant had no history of heart problems. For the plaintiff to prevail in a claim against the defendant, the plaintiff must show (i) actual cause, (ii) duty/scope of the duty, (iii) breach, and (iv) damages. While drivers owe a duty of care to other drivers on the road, a driver would not be deemed to have breached that duty if he had a surprise heart attack while driving, given that he had no history of heart trouble. (A) is wrong because the fact that the defendant’s car was a cause of the accident does not establish breach of duty. (B) is wrong because violation of an applicable statute, which may sometimes establish breach of duty, will be excused where compliance was impossible. Here, because the defendant suffered a sudden heart attack, he was unable to comply with the motor vehicle statute. (D) is wrong. The facts do not establish whether the accident would have happened regardless of the plaintiff’s contributory negligence, but the trier of fact will not reach that issue because the plaintiff will not be able to establish the prima facie case.
