Torts AMP Set - Duty Of Care

Question 1

A landowner’s duty to a person off the premises:

A Depends on the legal status of the person

B Applies to natural conditions to the same extent as artificial conditions

C Applies to unreasonably dangerous artificial conditions on the land

Answer 1

C

A landowner’s duty to those off the premises applies to unreasonably dangerous artificial conditions on the land. While the general rule is that a landowner does not owe a duty to protect one from artificial conditions on the premises, an exception applies for unreasonably dangerous artificial conditions or structures abutting adjacent land. A landowner’s duty does NOT apply to natural conditions to the same extent as artificial conditions. Except for decaying trees in urban areas, a landowner owes no duty to protect one outside his premises from natural conditions on the land. A landowner’s duty to those off the premises also does NOT depend on the legal status of the person. While the duty of a landowner to those who enter onto the landowner’s property depends on the entrant’s legal status, those rules do not apply to those injured outside the premises, who may be owed a duty regardless of their status. QUESTION ID: T0044A Additional Learning

Question 2

If a statute providing for a criminal penalty is applicable to a common law negligence case, the statute’s specific duty will replace the more general common law duty of care.
Which of the following does a plaintiff not need to show to prove the availability of the statutory standard?

A The plaintiff suffered physical injury because of the defendant’s violation of the statute.

B The standards set out in the statute are clearly defined.

C The statute was designed to prevent the type of harm that the plaintiff suffered.

D The plaintiff is in the class intended to be protected by the statute.

Answer 2

A

The plaintiff need not suffer physical injury from the defendant’s violation of the statute. While damages is an element of the prima facie case for negligence, any type of damages, including property damages, will suffice. To prove the availability of the statutory standard, a plaintiff must show that the standards set out in the statute are clearly defined. For the statute to apply: The plaintiff must be in the class intended to be protected by the statute; andThe statute must have been designed to prevent the type of injury that he suffered. QUESTION ID: T0058 Additional Learning

Question 3

Which of the following is correct as to lessors of realty?

ALiability for conditions on the leased premises hinges on who occupies and controls the premises

B A lessor cannot pass the burden of maintaining the premises onto the lessee

C A lessor leasing the entire premises ordinarily remains jointly liable with the lessee for dangerous conditions

Answer 3

A

With regard to the duties of a lessor of realty, liability for conditions on the leased premises hinges on who occupies and controls the premises. Thus, when the owner leases the entire premises, the lessee, coming into occupation and control, becomes burdened with the duty to maintain the premises in such a way as to avoid unreasonable risk of harm to others. A lessor CAN pass the burden of maintaining the premises onto the lessee, and he does so when the lessee leases the entire premises. Hence, it is not true that a lessor leasing the entire premises ordinarily remains jointly liable with the lessee for dangerous conditions. Although exceptions exist, the general rule is that liability is passed solely to the lessee when the lessor leases the entire premises. QUESTION ID: T0047A Additional Learning

Question 4

Which of the following correctly states the duty of a landowner?

A The landowner’s duty to warn of or make safe highly dangerous artificial conditions applies only to those trespassers he discovers on the land

B The landowner has a duty to inspect his land for the presence of trespassers

C The landowner owes the same duty to anticipated trespassers as he does to discovered trespassers

Answer 4

C

A landowner owes the same duty to anticipated trespassers as he does to discovered trespassers. The majority of states now treat anticipated trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner. Hence, it is not correct that the landowner’s duty to warn of or make safe highly dangerous artificial conditions applies only to those trespassers he discovers on the land. Typically, once a landowner discovers the presence of a trespasser, he is under a duty to warn the trespasser of or make safe a highly dangerous condition. However, a trespasser is not considered “discovered” only if the landowner actually notices the trespasser. A trespasser is viewed as discovered if the landowner is notified by information sufficient for a reasonable person to conclude that someone is on the property. A landowner does NOT owe a duty to inspect his land for the presence of trespassers. A landowner owes no duty to an undiscovered trespasser, and he has no duty to inspect in order to ascertain whether persons are coming onto his property. QUESTION ID: T0055A Additional Learning

Question 5

If a condition on a landowner’s property creates a danger to those off the premises:

A He does not owe a duty to anyone

B He owes a duty to invitees to take precautions

C He owes a duty to passersby to take due precautions

Answer 5

C

If a condition on a landowner’s property creates a danger to those off the premises, he owes a duty to passersby to take due precautions to protect those persons from the dangerous conditions. This is essentially an application of the regular duty of care standard. For example, he should erect a barricade to keep people from falling into an excavation at the edge of his property. Thus, it is incorrect to state that he does not owe a duty to anyone. It is also incorrect to state that the landowner owes a duty to invitees to take precautions. “Invitee” is a legal status of certain persons who enter onto the landowner’s property. The term is not used for those outside the premises, who may be owed a duty regardless of their status. QUESTION ID: T0044B Additional Learning

Question 6

Which of the following is a duty owed to a trespasser by a landowner?

A To warn a discovered trespasser of highly dangerous natural conditions that are unknown to the trespasser

B To warn an anticipated trespasser of highly dangerous artificial conditions known to the landowner

C To make reasonable inspections to identify highly dangerous artificial conditions

D To ascertain whether trespassers are coming onto his property

Answer 6

B

A landowner has a duty to warn an anticipated trespasser of highly dangerous artificial conditions known to the landowner. The majority of states treat anticipated trespassers generally on the same basis as discovered trespassers. Once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. The landowner has no duty to ascertain whether trespassers are coming onto his property or to make reasonable inspections to identify highly dangerous artificial conditions. There is also no duty owed for natural conditions, even if they are highly dangerous and unknown to the trespasser. QUESTION ID: T0050A Additional Learning

Question 7

In most states, when a medical provider was negligent before or during a patient’s pregnancy, damages for __________ may be recovered by the __________ in a wrongful _________ case.

A Pain and suffering; child; life

B Child-rearing expenses; parents; pregnancy

C Additional medical expenses; parents; birth

Answer 7

C

In most states, damages for additional medical expenses may be recovered by the parents in a wrongful birth case. The failure to diagnose a congenital defect of the fetus, when the suit is brought by the parents, is known as “wrongful birth,” and the failure to properly perform a contraceptive procedure is known as “wrongful pregnancy.” The mother can recover damages for the unwanted labor, and if the child has a defect, the parents may recover the additional medical expenses for caring for the child and, in some states, for emotional distress. Most states do not permit damages for child-rearing expenses to be recovered by the parents in a wrongful pregnancy case, just damages for the unwanted labor. Most states do not permit damages for pain and suffering to be recovered by the child in a wrongful life case, even if the child is born handicapped. QUESTION ID: T0041A Additional Learning

Question 8

Which of the following is correct regarding a landowner’s duty to an invitee under traditional landowner liability rules?

A An invitee may lose that status if she exceeds the scope of her invitation

B A firefighter engaged in fighting a fire on the landowner’s premises is an invitee

C The landowner does not owe an invitee a duty to make inspections

D The landowner must repair dangerous conditions to satisfy his duty to invitees

Answer 8

A

An invitee may lose that status if she exceeds the scope of her invitation. A person loses her status as an invitee if she exceeds the scope of the invitation, such as if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. A firefighter engaged in fighting a fire on the landowner’s premises is NOT an invitee. Under the “firefighter’s rule,” police officers and firefighters are generally treated like licensees rather than invitees, based on public policy or assumption of risk grounds. They cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. A landowner DOES owe an invitee a duty to make inspections. The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious dangers known to the landowner and to use ordinary care in active operations on the property), plus a duty to make reasonable inspections to discover dangerous conditions and make them safe. However, the duty to “make safe” does not require that the landowner must repair dangerous conditions to satisfy his duty to invitees. Depending on the nature of the danger, it is usually sufficient if a reasonable warning has been given. QUESTION ID: T0046B Additional Learning

Question 9

Which of the following is a permitted cause of action against a medical provider for negligence?

A A suit by a child for wrongful birth

B A suit by a child for wrongful life

C A suit by a parent for wrongful pregnancy

Answer 9

C

A cause of action in negligence against a medical provider exists for a suit by a parent for wrongful pregnancy. The parent of a child has a cause of action either for failure to diagnose a congenital defect of the fetus (“wrongful birth”) or for failure to properly perform a contraceptive procedure (“wrongful pregnancy”). A cause of action in negligence does not exist for a suit by a child for wrongful life or a suit by a child for wrongful birth. Even if a child is born handicapped, in most states the child cannot recover damages for “wrongful life” for the failure to diagnose a congenital defect or to properly perform a contraceptive procedure. QUESTION ID: T0041B Additional Learning

Question 10

An affirmative duty to act arises for all of the following defendants except:

A A motorist who begins to assist an injured traveler.

B A defendant who nonnegligently placed another in peril.

C An employer whose employee is injured in the workplace.

D A physician in the presence of a bystander who needs medical attention.

Answer 10

D

A physician in the presence of a bystander needing medical attention is under no affirmative duty to act. The general rule that no legal duty is imposed on any person to affirmatively act for the benefit of other applies to physicians as well. Hence, absent a special relationship or some other basis for imposing a duty, a physician would not be liable for failure to act despite the opportunity to do so. A motorist who begins to assist an injured traveler has an affirmative duty to continue the assistance. Although a person does not owe a duty to aid a stranger in an emergency arising from some other source, if a defendant does so, she is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance. An employer whose employee is injured in the workplace has an affirmative duty to render assistance under the general rule that a defendant having a special relationship to the plaintiff may be liable for failure to act if the plaintiff is in peril. A defendant who nonnegligently placed another in peril has an affirmative duty to act to assist that person. It does not matter whether the defendant’s initial conduct was negligent or innocent; the duty arises because the defendant was the cause of the other’s perilous position. QUESTION ID: T0059 Additional Learning

Question 11

Which of the following persons is considered to be an invitee of the landowner?

A A child accompanying a customer of the landowner.

B A hiker hiking on the landowner’s open land with permission.

C A customer of the landowner who goes through a door marked “employees only”.

D A firefighter fighting a fire on the landowner’s property.

Answer 11

A

A child accompanying a customer of the landowner is considered an invitee because she came onto the property for a purpose connected to the business. Under traditional landowner liability rules, a landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property). A landowner also owes invitees a duty to make reasonable inspections to discover dangerous conditions and make them safe. A customer of the landowner who goes through a door marked “employees only” is no longer an invitee. A person loses his status as an invitee if he exceeds the scope of the invitation—if he goes into a portion of the premises where his invitation cannot reasonably be said to extend. A firefighter fighting a fire on the landowner’s property is not treated like an invitee. Under the “firefighter’s rule,” police officers and firefighters are generally treated like licensees, based on public policy or assumption of risk grounds. They cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. A hiker on the landowner’s open land is not considered an invitee. If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity. QUESTION ID: T0046 Additional Learning

Question 12

Which of the following is correct regarding the duties of a lessor of realty?

A If the lessor voluntarily decides to make repairs on the premises, he is liable if he does so negligently

B A lessor leasing the entire premises still has a duty to maintain the premises

C The lessor is obligated to repair existing defects before transferring the premises to the lessee

Answer 12

A

If the lessor voluntarily decides to make repairs on the premises, even though under no obligation to do so, he is liable if he does so negligently. It is not necessary that his negligent repairs make the condition worse. A lessor leasing the entire premises does NOT still have a duty to maintain the premises. The lessee, coming into occupation and control of the premises, becomes burdened with the duty to maintain the premises in such a way as to avoid unreasonable risk of harm to others. If the owner leases only portions of the premises, he continues to be subject to liability for unreasonably dangerous conditions in the portions he retains, like corridors, entry lobbies, elevators, etc. The lessor is NOT obligated to repair existing defects before transferring the premises to the lessee. The landowner as lessor need only give warning to the lessee of existing defects in the premises of which the lessor is aware or has reason to know and which he knows the lessee is not likely to discover on reasonable inspection. QUESTION ID: T0057A Additional Learning

Question 13

In most jurisdictions, the standard of care owed by an automobile driver to a rider is:

A Ordinary care regardless of whether the rider has contributed toward the expense of the ride

B To refrain from gross negligence if the rider has not contributed toward the expense of the ride

C A high degree of care if the rider has contributed toward the expense of the ride

Answer 13

A

In most jurisdictions today, the duty owed by the driver of an automobile to a rider is one of ordinary care regardless of whether the rider has contributed toward the expense of the ride. Only a few states have guest statutes whereby a driver’s only duty is to refrain from gross negligence if the rider has not contributed toward the expense of the ride. Under a guest statute, a rider who contributes toward the expense of the ride is owed a duty of ordinary care. A driver does not owe his rider a high degree of care if she has contributed toward the expense of the ride. Common carriers are required to exercise a very high degree of care toward their passengers at common law. This is more than what is required from a regular driver. QUESTION ID: T0054A Additional Learning

Question 14

Which of the following persons is considered a licensee of the landowner?

A A friend of the landowner invited in after giving the landowner a ride home.

B A member of the public visiting a free museum.

C A trespasser who the landowner knows regularly crosses over a section of the landowner’s land.

D A health inspector determining whether to renew the landowner’s food service license.

Answer 14

A

The friend of the landowner is a social guest and therefore a licensee. Under traditional landowner liability rules, a licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business rather than for the landowner’s benefit. Even though a host may also derive some benefit from the presence of a social guest, including receiving the performance of minor services by the guest, this does not make the guest an invitee. A trespasser who the landowner knows regularly crosses over a section of the landowner’s land is an anticipated trespasser and not a licensee. The duty owed to discovered and anticipated trespassers is not as high as the duty owed to licensees. A health inspector determining whether to renew the landowner’s license is not a licensee. Persons who enter the premises for a purpose connected with the landowner’s business are invitees and are owed a higher duty. Similarly, a member of the public visiting a free museum is an invitee. Invitees include those who enter the premises for a purpose for which the land is held open to the public. QUESTION ID: T0045 Additional Learning

Question 15

A duty of care is generally not owed to __________.

A a third party for whose economic benefit a legal or business transaction is made

B a rescuer, unless the defendant negligently put herself or a third person in peril

C a viable fetus

Answer 15

B

A rescuer is a foreseeable plaintiff and is owed a duty of care as long as the rescue is not reckless, but only if the defendant negligently put herself or a third person in peril. However, firefighters and police officers may be barred by the “firefighter’s rule” from recovering for injuries caused by the risks of a rescue. A duty of care is owed to a viable fetus; prenatal injuries are actionable. A third party for whose economic benefit a legal or business transaction is made is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently. QUESTION ID: T0052 Additional Learning

Question 16

One will have an affirmative duty to act to assist another when she __________.

A Puts the other in peril by her innocent conduct

B Is protected by a “Good Samaritan” statute

C Commits nonfeasance by failing to perform a contractual obligation

Answer 16

A

One will have an affirmative duty to act to assist another when she puts the other in peril by her innocent conduct. Whether her conduct was negligent or innocent, the person who puts another in peril is under a duty to use reasonable care to aid or assist that person. One does not have an affirmative duty to act to assist another when she commits nonfeasance by failing to perform a contractual obligation. In general, for mere contract nonfeasance, there is no tort duty of care, regardless of whether the defendant promised to undertake an action gratuitously or for consideration. Liability for breach of contract by failure to act extends only to the contracting parties. However, a defendant who begins to perform her contractual obligations and fails to do so with due care (contract misfeasance) may be liable for breach of a tort duty. One does not have an affirmative duty to act to assist another just because she is protected by a “Good Samaritan” statute. Many states have enacted Good Samaritan statutes, which usually exempt doctors, nurses, etc. from liability for ordinary negligence when they voluntarily and gratuitously render emergency assistance. However, such a statute does not impose on those protected by the statute an affirmative duty to assist others. QUESTION ID: T0059B Additional Learning

Question 17

One who enters a landowner’s property __________ does not qualify as an invitee.

A In response to a dinner invitation from the landowner

B In response to a sale at the landowner’s shopping mall

C To view an exhibition at the landowner’s public art gallery

Answer 17

A

One who enters land in response to a dinner invitation from the landowner does not qualify as an invitee; social guests are treated as licensees. Under traditional landowner liability rules, a licensee is one who enters on land with the landowner’s permission, express or implied, for her own purpose or business, rather than for the landowner’s benefit. An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. There are two classes of invitees: (i) one who enters land for a purpose for which the land is held open to the public, e.g., to view an exhibition at the landowner’s public art gallery; and (ii) one who enters land for a purpose connected with the business of the landowner, e.g., in response to a sale at the landowner’s shopping mall. QUESTION ID: T0046A Additional Learning

Question 18

One who enters on land with the landowner’s permission for her own purpose or business rather than the landowner’s benefit is a __________.

A Invitee

B Trespasser

C Licensee

Answer 18

C

Under the traditional rule followed in many jurisdictions, the legal status of one who enters onto a landowner’s property governs the landowner’s liability. A licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business, rather than for the landowner’s benefit. A trespasser is one who comes onto the land without permission or privilege. An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. QUESTION ID: T0045A Additional Learning

Question 19

Which of the following is correct regarding children and the applicable standard of care for negligence?

A The standard of care for a child is based on an objective standard of an ordinary child

B Children below the age of 10 do not have the capacity for negligence

C A child will be treated as an adult, regardless of age, if engaged in an adult activity

Answer 19

C

Regarding the applicable standard of care, a child will be treated as an adult, regardless of age, if engaged in an adult activity. When a child engages in an activity that is normally one that only adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity. Children below the age of 10 DO have the capacity for negligence. There is a minimum age for which it is meaningful to speak of a child being capable of conforming his conduct to a standard of care. Most courts, however, do not fix this age at an arbitrary figure. To the extent that courts would find a child under a certain age as not having the capacity to be negligent, it would be a child below the age of five, not 10. The standard of care for a child is NOT based on an objective standard of an ordinary child. A majority of courts take the view that a child is required to conform to the standard of care of a child of like age, education, intelligence, and experience. This permits a subjective evaluation of these factors. QUESTION ID: T0042B Additional Learning

Question 20

Which of the following duties is owed by an owner or occupier of land under traditional landowner liability rules?

A 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.

B To inspect the land in order to ascertain whether trespassers are coming onto his property and could suffer harm due to artificial conditions that a trespasser is unlikely to discover.

C To warn discovered trespassers of, or make safe, all natural and artificial conditions that pose an unreasonable risk of harm to the trespasser.

D To inspect for defects and to repair known defects that create an unreasonable risk of harm to a licensee that the licensee is unlikely to discover.

Answer 20

A

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. An owner or occupier of land does not have a duty to a licensee to inspect for defects and to repair known defects. On the other hand, the landowner does owe an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This includes a duty to make reasonable inspections to discover dangerous conditions and to warn the invitee of the conditions or make them safe. An owner or occupier of land does not have a duty to inspect the land in order to ascertain whether trespassers are coming onto his property. If an owner or occupier of land discovers the presence of a trespasser on his land, he does not have a duty to warn him of all natural and artificial conditions that pose an unreasonable risk of harm; he need only warn the trespasser of, or make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm that the trespasser is unlikely to discover. QUESTION ID: T0055 Additional Learning

Question 21

If a statute providing for a criminal penalty is applicable to a common law negligence case, a clearly stated specific duty imposed by the statute will replace the more general common law duty of care.
Most courts hold that violation of an applicable statute __________.

A is only prima facie evidence of negligence

B raises a rebuttable presumption as to duty and breach

C is negligence per se

D raises a rebuttable presumption as to breach

Answer 21

C

Most courts still adhere to the rule that violation of an applicable statute is “negligence per se.” This means that the plaintiff will have established a conclusive presumption of duty and breach of duty by showing a violation of the statute. (The plaintiff still must establish causation and damages to complete the prima facie case for negligence.) For a statute to apply in a negligence case: (i) The plaintiff must show that she is in the class intended to be protected by the statute; and(ii) The plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered.The minority view holds either that: (i) a rebuttable presumption as to duty and breach arises, or (ii) the statutory violation is only prima facie evidence of negligence.QUESTION ID: T0048 Additional Learning

Question 22

Which of the following is correct at common law regarding affirmative duties to act?

A A physician has a duty to render emergency medical care if it will not result in risk of harm to her

B One has a general duty to act when it will not result in risk of harm to him

C A “Good Samaritan” statute excuses any resulting negligence

D One who acts for the benefit of another has a duty to continue the assistance

Answer 22

D

With regard to affirmative duties to act, one who acts for the benefit of another is under a duty to continue the assistance. 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. There is no general duty to act, even if it will not result in risk of harm to the person who would be taking action. As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others. Absent a statute changing the common law rule, even physicians are not required to come to the aid of a person needing assistance. A “Good Samaritan” statute does NOT excuse any resulting negligence. Many states have enacted Good Samaritan statutes, which usually exempt doctors, nurses, etc. from liability for ordinary negligence when they voluntarily and gratuitously render emergency treatment. However, liability still exists under most of these statutes for gross negligence. QUESTION ID: T0059A Additional Learning

Question 23

Under the traditional rule, to whom does a landowner owe a duty to make reasonable inspections?

A A licensee

B An invitee

C A discovered trespasser

Answer 23

B

A landowner owes a duty to an invitee to make reasonable inspections. An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of or make safe nonobvious dangerous conditions known to the landowner and to use ordinary care in active operations on the property) plus a duty to make reasonable inspections to discover dangerous conditions and make them safe. A landowner does not owe a duty to a discovered trespasser to make reasonable inspections. Once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm that the trespasser is unlikely to discover. The landowner has no duty to a trespasser to inspect for defects. A landowner also does not owe a duty to a licensee to make reasonable inspections under the traditional rule followed in many states. The landowner has a duty to the licensee to warn 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. The landowner has no duty to a licensee to inspect for defects nor to repair known defects. Close to half the states have abolished the distinction between invitees and licensees, instead applying a reasonable person standard. QUESTION ID: T0055B Additional Learning

Question 24

A plaintiff may be able to recover damages for emotional distress from the threat of physical impact to her if she __________.

A Is in the zone of danger from the defendant’s conduct

B Is a close relative of the injured party

C Has a special relationship with the defendant

Answer 24

A

A plaintiff can recover damages for emotional distress from the threat of physical impact to her when she is in the zone of danger from the defendant’s conduct. A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (i) the plaintiff must be within the “zone of danger”; and (ii) the plaintiff must suffer physical symptoms from the distress. In other situations, a bystander who is a close relative of an injured party or a plaintiff who has a special relationship with the defendant can recover damages for negligent infliction of emotional distress. However, these situations do not involve emotional distress that arises from the threat of physical impact to the plaintiff. QUESTION ID: T0051B Additional Learning

Question 25

Which of the following is true of the duty owed to a licensee by a landowner?

A The landowner must repair known dangerous conditions on the land of which the licensee is not aware

BThe landowner must inspect for dangerous conditions on the land

C The landowner owes a duty to warn of or make safe known dangerous conditions on the land of which the licensee is not aware

D The landowner owes no duty to protect the licensee from active operations on the land

Answer 25

C

A landowner owes a duty to a licensee to warn of or make safe known dangerous conditions on the land of which the licensee is not aware. A licensee is one who enters on land with the landowner’s permission, express or implied, for her own purpose or business, rather than for the landowner’s benefit. The owner has a duty to warn of or make safe a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. As to a licensee, the landowner does NOT need to inspect for dangerous conditions on the land. Similarly, the landowner need NOT repair known dangerous conditions on the land of which the licensee is not aware; a warning generally will suffice. The landowner DOES have a duty to protect the licensee from active operations on the land. The owner has a duty to exercise reasonable care in the conduct of active operations for the protection of a licensee whom he knows to be on the property. QUESTION ID: T0045B Additional Learning

Question 26

Which of the following does not correctly state a requirement for a bystander to recover for negligent infliction of emotional distress?

A The bystander must have arrived on the scene within a brief time after the injury-causing event

B The bystander and the person injured must be closely related

C The bystander must have observed or perceived the injury-causing event

Answer 26

A

It is not a correct statement of a requirement to recover for negligent infliction of emotional distress that the bystander must have arrived on the scene within a brief time after the injury-causing event. This does not go far enough. A majority of courts allow a bystander to recover damages for her own distress when the defendant negligently injures another as long as: (i) The bystander and the person injured by the defendant are closely related; (ii) The bystander was present at the scene of the injury; and (iii) The bystander personally observed or perceived the event. QUESTION ID: T0051A Additional Learning

Question 27

Most courts will impose a standard of ordinary care, an objective standard, on a child who is _________.

A Riding a bicycle

B Playing tag

C Piloting a motorboat

Answer 27

C

Most courts impose an objective standard of ordinary care on a child who is engaged in an adult activity, such as piloting a motorboat. The general rule is that a child is required to conform to the standard of care of a child of like age, education, intelligence, and experience. This permits a subjective evaluation of these factors, and would apply to activities children typically engage in, such as riding a bicycle or playing tag. However, when a child engages in an activity that normally only adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity. Hence, the standard of care is measured objectively, without taking into account the characteristics of the child noted above. QUESTION ID: T0042A Additional Learning

Question 28

Which of the following is not required for a statutory standard of care to apply in a negligence case?

A The plaintiff must be in the class intended to be protected by the statute

B The statute must state clearly what standard of conduct is expected

C The statute must have been designed to prevent the type of harm that occurred

D The statute must provide for a civil penalty

Answer 28

D

The standard of care in a common law negligence case may be established by proving the applicability of a statute that provides for a criminal penalty, NOT a civil penalty. If the statute applies, the statute’s specific duty will replace the more general common law duty of due care. If the statute in question provides for a civil remedy, the plaintiff will sue directly under the statute: i.e., it is not a common law negligence case. For a statute to apply, the specific duty imposed by the statute must be clearly stated. The plaintiff also must show that: (i) She is in the class intended to be protected by the statute; and (ii) The statute was designed to prevent the type of harm that the plaintiff suffered. QUESTION ID: T0058A Additional Learning

Question 29

Which potential defendant is held to the standard duty of ordinary care?

A A common carrier toward its passengers

B A professional, such as a doctor or lawyer

C An automobile driver to a rider

D An innkeeper toward his guests

Answer 29

C

The driver of an automobile owes a rider a duty of ordinary care. While a few states have guest statutes that set a lower standard of care for nonpaying riders, the vast majority of states apply an ordinary care standard. A person who is a professional, such as a doctor or lawyer, must exercise the knowledge and skill of members of the profession in good standing. At common law, common carriers such as airlines and taxis are required to exercise a very high degree of care toward their passengers, and thus are more likely to be liable for negligence than under an ordinary care standard. Innkeepers are required to exercise a very high degree of care toward their guests at common law, and they are liable for slight negligence. QUESTION ID: T0054 Additional Learning

Question 30

Which of the following statements is not true as to the “reasonable person” standard for evaluating whether a defendant’s conduct was negligent?

A The “reasonable person” is considered to have the same mental characteristics as the defendant.

B The “reasonable person” is considered to have the same physical characteristics as the defendant.

C The defendant is expected to know his physical handicaps and to exercise the care of a person with such knowledge.

D The defendant is deemed to have knowledge of things known by the average member of the community.

Answer 30

A

A “reasonable person” is not considered to have the same mental characteristics as the defendant. A defendant must act as a person with average mental ability would act. The defendant’s individual mental handicaps are not considered; a low IQ is no excuse, and insanity is no defense. The “reasonable person” is an objective standard, but the “reasonable person” is considered to have the same physical characteristics as the defendant. The defendant is deemed to have knowledge of things known by the average member of the community, and the defendant’s individual shortcomings are not considered. Although a person with a physical disability is held to the reasonable person standard, he is expected to know his physical handicap and is under a duty to exercise the care of a person with such knowledge. QUESTION ID: T0053 Additional Learning

Question 31

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 __________.

A owner and the lessee equally

B lessee on a primary basis and the owner on a secondary basis

C lessee

D owner

Answer 31

C

The lessee has the duty to maintain the premises in such a way as to avoid unreasonable risk of harm to others. Ordinarily, tort liability for dangerous conditions on the property is based on occupation and control of the property, so that if an owner has transferred control of the entire premises to a lessee, the lessee assumes the tort liability. The owner has no duty, whether solely, equally with the lessee, or on a secondary basis, to maintain the premises once the owner has transferred occupation and control of the entire premises to a lessee. Note that this rule does not apply to existing defects of which the owner is aware and which the lessee is unlikely to discover, or defects covered under an owner’s covenant to repair or repaired negligently by the landlord. QUESTION ID: T0057 Additional Learning

Question 32

What is the standard of care for a medical professional?

A To act as a reasonably prudent person

B To possess and exercise the knowledge and skill of a member of the profession in good standing

C To act as a medical professional of like age, education, intelligence, and experience

Answer 32

B

A medical professional is required to possess and exercise the knowledge and skill of a member of the profession in good standing. A person who is a professional or has special skills (e.g., doctor, lawyer, airplane mechanic, etc.) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing. For doctors, most courts will apply a national standard of care to evaluate their conduct. The professional must also use such superior judgment, skill, and knowledge as he actually possesses. Thus, a specialist might be held liable where a general practitioner would not. A medical professional is not held to a standard of a medical professional of like age, education, intelligence, and experience. These characteristics are used to define the standard of care applied to a child .

Question 33

When a statutory standard of care replaces the common law duty of care in a negligence case, the defendant’s lack of compliance with the statute will be excused if:

A Violation of the statute would result in a civil infraction instead of a criminal one

B Violation of the statute causes more danger than compliance

C Compliance with the statute is beyond the defendant’s control

Answer 33

C

A violation of an applicable statute may be excused if: (i) compliance with the statute would cause more danger than a violation (e.g., a defendant drives onto the wrong side of the road to avoid hitting children who dart into his path), or (ii) compliance with the statute would be beyond the defendant’s control (e.g., a blind pedestrian crosses against a light). Violation of the statute will not be excused if violation of the statute causes more danger than compliance; this misstates the rule stated above. It is not correct to state that violation of the statute will be excused if violation of the statute would result in a civil infraction instead of a criminal one; rather, the statute itself supplies the remedy rather than damages through a common law negligence action. The defendant will not be excused for violating the statute. QUESTION ID: T0058B Additional Learning

Question 34

A bystander who witnesses the defendant negligently injuring another can recover for negligent infliction of emotional distress in most states by showing:

A a close relationship between the bystander and the person injured, the bystander’s presence within the zone of danger from physical injury, and the bystander’s observation or perception of the event.

B the bystander’s presence within the zone of danger from physical injury, and the bystander’s observation or perception of the event.

C a close relationship between the bystander and the person injured, and the bystander’s observation or perception of the event.

D a close relationship between the bystander and the person injured, the bystander’s presence at the scene of the injury, and the bystander’s observation or perception of the event.

Answer 34

D

A bystander must show a close relationship between the bystander and the person injured, the bystander’s presence at the scene of the injury, and the bystander’s observation or perception of the event to recover. Traditionally, a bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another could not recover damages for her own distress. A majority of states now allow recovery in these cases as long as: The plaintiff and the person injured by the defendant are closely related; The plaintiff was present at the scene of the injury; and The plaintiff personally observed or perceived the event. The bystander’s presence within the zone of danger from physical injury is no longer required for a bystander to recover for witnessing an injury to another. QUESTION ID: T0051 Additional Learning

Question 35

If a landowner discovers a trespasser on his land:

A He owes the trespasser no duty for natural conditions that involve a risk of death or serious bodily harm

B He owes the trespasser no duty if “no trespassing” signs are posted

C He has a duty to warn the trespasser of any conditions that involve a risk of death or serious bodily harm

Answer 35

A

If a landowner discovers a trespasser on his land, he owes the trespasser no duty for natural conditions, even if they involve a risk of death or serious bodily harm. There is no duty owed for natural conditions and less dangerous artificial conditions, just artificial conditions likely to cause death or serious bodily harm. Hence, it is incorrect to state that the landowner has a duty to warn the trespasser of ANY conditions that involve a risk of death or serious bodily harm. It is also not true that a landowner owes the trespasser no duty if “no trespassing” signs are posted. While posting signs might serve to convert “anticipated” trespassers into “undiscovered” trespassers, a trespasser who is actually discovered on the land is owed a duty as to dangerous artificial conditions. QUESTION ID: T0050C Additional Learning

Question 36

To recover for a doctor’s breach of duty during a patient’s pregnancy, most states permit a lawsuit in the following cases except:

A by a child for “wrongful life” after the defendant fails to diagnose a congenital defect of the fetus.

B by a child’s mother for an unwanted labor after the defendant fails to properly perform a contraceptive procedure.

C by a child’s parents for “wrongful birth” after the defendant fails to diagnose a congenital defect of the fetus.

D by a child’s parents for “wrongful pregnancy” after the defendant fails to properly perform a contraceptive procedure.

Answer 36

A

In most states, an unwanted child’s suit for “wrongful life” after the defendant fails to diagnose a congenital defect of the fetus is not actionable. The failure to diagnose a congenital defect of the fetus or to properly perform a contraceptive procedure does not permit the unwanted child to recover damages for “wrongful life,” even if the child is born with a handicap. The child’s parents’ suit for “wrongful birth” after the defendant fails to diagnose a congenital defect of the fetus is actionable in most states. The child’s parents’ suit for “wrongful pregnancy” after the defendant fails to properly perform a contraceptive procedure is actionable in most states. The child’s mother’s suit for an unwanted labor after the defendant fails to properly perform a contraceptive procedure is actionable. The mother can recover damages for the unwanted labor (medical expenses and pain and suffering). QUESTION ID: T0041 Additional Learning

Question 37

A bailee is liable to the bailor only for gross negligence if the bailment is for:

A the sole benefit of a third party.

B the mutual benefit of the bailor and bailee.

C the sole benefit of the bailor.

D the sole benefit of the bailee.

Answer 37

C

If the bailment is for the sole benefit of the bailor, the bailee is liable only for gross negligence. An example of a bailment for the sole benefit of the bailor is someone taking in the mail of a vacationing neighbor (the bailor). If the bailment is for the sole benefit of the bailee, the bailee is liable even for slight negligence. An example of a bailment for the sole benefit of the bailee is the owner of a lawnmower letting a neighbor (the bailee) borrow it. If the bailment is for the sole benefit of a third party, the bailee may be liable to the bailor for ordinary negligence. Similarly, if the bailment is for the mutual benefit of the bailor and bailee, the bailee is liable to the bailor for negligence. An example of a bailment for the mutual benefit of the bailor and bailee is a computer owner (the bailor) delivering it to a repair shop (the bailee). QUESTION ID: T0043 Additional Learning

Question 38

Which of the following need not be shown by the plaintiff under the attractive nuisance doctrine?

A The expense of remedying the situation is slight compared with the magnitude of the risk.

B The owner was or should have been aware of the dangerous condition.

C The condition was likely to cause injury because of the child’s inability to appreciate the risk.

D The child was lured onto the property by the attractive nuisance.

Answer 38

D

The plaintiff does not need to show that the child was lured onto the property by the attractive nuisance. The plaintiff does need to show that the owner was or should have been aware of the dangerous condition, that it was likely to cause injury because of the child’s inability to appreciate the risk, and that the expense of eliminating the danger is slight compared with the magnitude of the risk. Under the attractive nuisance doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property. To recover under this doctrine, the plaintiff must show: There is a dangerous condition present on the land of which the owner is or should be aware;The owner knows or should know that young persons frequent the vicinity of this dangerous condition;The condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk; andThe expense of remedying the situation is slight compared with the magnitude of the risk. QUESTION ID: T0056 Additional Learning