Torts AMP Set - Wrongful Death And Tort Immunities Flashcards
What is the result when the plaintiff in a tort action dies?
A Property tort actions survive, but not personal injury tort actions
B All tort actions survive the death of the victim
C No tort actions survive the death of the victim
D Actions based on intangible personal torts do not survive
D
In most jurisdictions, actions based on intangible personal torts do not survive the victim’s death. Torts like defamation and malicious prosecution are felt to be so personal as to expire upon the victim’s death. Hence, all tort actions do NOT survive the death of the victim. At common law, a tort action abated at the death of either the tortfeasor or the victim. However, most states have changed this through “survival acts.” Thus, many tort actions DO survive the death of the victim. In the majority of states, this applies to BOTH torts to property and torts resulting in personal injury. QUESTION ID: T0110A Additional Learning
Which of the following is correct regarding intra-family tort immunities?
A In most states, either spouse may maintain a tort action against the other
B Traditionally, any family member could sue any other family member in tort for personal injury
C Under immunity rules, a family member cannot maintain a tort action against another family member for damage to property
A
Most states have abolished interspousal immunity. Hence, either spouse may now maintain a tort action against the other. Under the traditional view, one family member could NOT sue another family member in tort for personal injury. This view has undergone substantial change in most states. To the extent that intra-family tort immunity exists, it applies to personal, not property, injuries. Thus, a family member CAN maintain a tort action against another family member for damage to property. QUESTION ID: T0115B Additional Learning
In a wrongful death action, a defense against a potential beneficiary __________.
A is analyzed under the jurisdiction’s comparative negligence rules
B bars the wrongful death action
C is analyzed under the jurisdiction’s joint and several liability rules
D bars the beneficiary from recovering any damages
A
In a wrongful death action, a defense against a potential beneficiary is analyzed under the jurisdiction’s comparative negligence rules. Thus, the total damage award assessed by the jury will be reduced by the amount withheld from the beneficiary. A beneficiary’s negligence does not bar the wrongful death action, nor does it automatically bar the beneficiary from recovering damages; the latter would happen only if the jurisdiction has adopted partial comparative negligence and the beneficiary was the most at fault. A jurisdiction’s joint and several liability rules apply to the liability of multiple tortfeasors rather than the rights of beneficiaries in a wrongful death action. QUESTION ID: T0112 Additional Learning
What does it mean to say that an action for interference with family relationships is “derivative”?
A Recovery for interference is separate from the injured family member’s own cause of action
B Recovery for interference depends on the potential success of the injured family member’s own action
C Even if an injured family member was contributorily negligent, this will not prevent or reduce recovery by the spouse for interference with a family relationship
B
Saying that an action for interference with a family relationship is derivative means that recovery for interference depends on the potential success of the injured family member’s own action. Thus, any defense that would prevent recovery by the injured family member will also prevent recovery in the derivative action for interference with a family relationship. Furthermore, a defense against a family member seeking such a derivative recovery may also defeat the action. Hence, it is not correct to say that recovery for interference is separate from the injured family member’s own cause of action. Accordingly, if the injured family member was contributorily negligent, this WILL prevent or reduce recovery by the spouse for interference with a family relationship. QUESTION ID: T0114B Additional Learning
Under the public duty doctrine, a duty owed to the public at large is not owed to any particular citizen unless there is a special relationship between the municipality and the citizen.
Which of the following is not a factor for showing that a special relationship exists?
A Knowledge on the part of the municipality’s agents that failure to perform the duty could lead to harm.
B The municipality’s collection of fees from the citizen for performing the service.
C The citizen’s justifiable reliance on the municipality’s affirmative undertaking.
D Some form of direct contact between the municipality’s agents and the citizen.
B
The municipality’s collection of fees from the citizen is not a factor in determining whether a special relationship exists under the public duty doctrine. A special relationship can be shown by: (i) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (ii) knowledge on the part of the municipality’s agents that inaction could lead to harm; (iii) some form of direct contact between the municipality’s agents and the citizen; and (iv) that party’s justifiable reliance on the municipality’s affirmative undertaking. QUESTION ID: T0118 Additional Learning
Which of the following rules is correct regarding tortious interference with a family relationship?
A A spouse can recover for loss of consortium only if the defendant committed intentional tortious conduct
B A child cannot recover damages when his parent is injured by a defendant’s tortious conduct
C A parent cannot recover for loss of the child’s services when the child is injured by a defendant’s tortious conduct
B
A child has NO cause of action in most jurisdictions against a defendant who tortiously injures his parent. A spouse can recover for loss of consortium from the defendant’s conduct, whether intentional, negligent, or based on strict liability in most jurisdictions. Both husbands and wives may recover damages for loss of their spouse’s consortium or services because of injuries to the spouse. A parent may maintain an action for loss of the child’s services when the child is injured as a result of the defendant’s tortious conduct, whether such conduct is intentional, negligent, or based on strict liability. QUESTION ID: T0113A Additional Learning
Under the Federal Tort Claims Act, federal government immunity does not attach for _________.
A Discretionary acts
B Ministerial acts
C Certain torts such as malicious prosecution, false imprisonment, and false arrest
B
Under the Federal Tort Claims Act, federal government immunity is waived for acts characterized as “ministerial.” The immunity is not waived for acts characterized as “discretionary.” In general, discretionary activity is that which takes place at the planning or decisionmaking level, while ministerial acts are performed at the operational level of government (e.g., repairing traffic signals, driving a vehicle). The United States generally is immune for certain enumerated torts, specifically (i) malicious prosecution; (ii) assault; (iii) battery; (iv) false imprisonment; (v) false arrest; (vi) abuse of process; (vii) libel and slander; (viii) misrepresentation and deceit; and (ix) interference with contract rights. A government contractor may assert the federal government’s immunity defense in a products liability case, if the contractor conformed to reasonable, precise specifications approved by the government and warned the government about any known dangers in the product. QUESTION ID: T0116B Additional Learning
In states that have abolished municipal tort immunity to the same extent as state immunity, the municipality may still avoid liability for __________.
A Proprietary functions
B Governmental functions
C Discretionary acts
D Ministerial acts
C
In states that have abolished municipal tort immunity to the same extent as state immunity, the municipality may still avoid liability for discretionary acts. About half of the states have abolished municipal tort immunity by statute or judicial decision to the same extent that they have waived their own immunity. Hence, municipal tort immunity is abolished for ministerial acts and everything else but discretionary acts and policy decisions. In general, discretionary activity is that which takes place at the planning or decisionmaking level, while ministerial acts are performed at the operational level of government (e.g., repairing traffic signals, driving a vehicle). Where municipal immunity still exists in its traditional form, many courts have limited its effect by differentiating between governmental and proprietary functions of the municipality. A function will be deemed proprietary if it might as well have been provided by a private corporation. In contrast, a governmental function is one that traditionally could only have been performed adequately by the government. Immunity attaches to governmental functions but not to proprietary functions. States that have abolished municipal tort immunity generally do not make that distinction. QUESTION ID: T0117A Additional Learning
Which of the following statements is true regarding intra-family tort immunities?
A Parent-child immunity applies only to suits by parents against children and not suits by children against parents.
B Most states retaining parent-child immunity apply it in cases of intentional torts.
C States that have limited interspousal immunity still apply it in automobile accident cases to the extent of insurance coverage.
D Intra-family immunity does not apply to property damage by one family member against another.
D
To the extent that intra-family tort immunity exists, it does not apply to property damage by one family member against another. Hence, a suit for property damage may usually be maintained by any family member against any other family member. States retaining parent-child immunity do apply it in suits by parents against children but do not apply it in cases of intentional torts. To the extent that intra-family immunity still exists, it generally would not be applied in automobile accident cases to the extent of insurance coverage. QUESTION ID: T0115 Additional Learning
Under the Federal Tort Claims Act, the federal government generally is immune from tort liability for __________.
A Acts characterized as ministerial
B Infliction of emotional distress, and libel and slander
C Assault, battery, and libel and slander
C
The federal government generally is immune from liability for assault, battery, and libel and slander, as well as certain other enumerated torts. Through the Federal Tort Claims Act, the United States has waived its immunity for tortious acts, and the federal government may now be held liable to the same extent as a private individual. However, the Act spells out several situations where this immunity will still attach, and the United States is still immune for certain enumerated torts. Immunity still attaches for: (i) assault; (ii) battery; (iii) false imprisonment; (iv) false arrest; (v) malicious prosecution; (vi) abuse of process; (vii) libel and slander; (viii) misrepresentation and deceit; and (ix) interference with contract rights. Infliction of emotional distress is not one of the enumerated torts; hence, immunity is waived for that tort unless the conduct also falls into one of the enumerated torts above. The federal government is not immune from acts characterized as “ministerial.” Rather, immunity applies to acts characterized as “discretionary.” In general, discretionary activity is that which takes place at the planning or decisionmaking level, while ministerial acts are performed at the operational level of government. QUESTION ID: T0116A Additional Learning
In an action by a spouse for loss of consortium and services, the defendant may raise as a defense __________.
A neither the contributory negligence of the injured spouse nor the contributory negligence of the plaintiff spouse
B the contributory negligence of either the injured spouse or the plaintiff spouse
C the contributory negligence only of the injured spouse
D the contributory negligence only of the plaintiff spouse
B
In an action by a spouse for loss of consortium and services, the defendant may raise as a defense the contributory negligence of either the injured spouse or the plaintiff spouse. The action for interference with consortium and services is derivative. Recovery in the derivative action depends on the potential success of the injured family member’s own action. Thus, any defense that could be raised against the injured family member can also be raised in the derivative action for interference with consortium and services. Furthermore, a defense against a family member seeking such a derivative recovery may also be raised in this action. QUESTION ID: T0114 Additional Learning
Many jurisdictions retaining municipal immunity do not apply their immunity to _________ functions.
A public duty
B ministerial
C proprietary
D discretionary
C
Many jurisdictions retaining municipal immunity do not apply their immunity to proprietary functions. A function will be deemed proprietary if it might as well have been provided by a private corporation. In contrast, a governmental function is one that traditionally could only have been performed adequately by the government. The distinction between ministerial and discretionary functions is made in many jurisdictions that have abolished immunity rather than retained it. In those jurisdictions, immunity is not abolished for discretionary functions, i.e., those at the planning or decisionmaking level. Similarly, many jurisdictions abolishing immunity do not abolish it for public duty functions; a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the municipality and the citizen. QUESTION ID: T0117 Additional Learning
Under the Federal Tort Claims Act, the United States has waived its immunity for _________ by government employees.
A interference with contract rights
B battery
C conversion
D discretionary acts
C
Under the Federal Tort Claims Act, the United States has waived its immunity for tortious acts by government employees except for certain enumerated torts. Conversion is not one of the enumerated torts; hence, immunity is waived for that tort. Immunity is retained for (i) assault, (ii) battery, (iii) false imprisonment, (iv) false arrest, (v) malicious prosecution, (vi) abuse of process, (vii) libel and slander, (viii) misrepresentation and deceit, and (ix) interference with contract rights. In addition, the immunity is not waived for “discretionary” acts, as distinguished from “ministerial” acts. In general, discretionary activity is that which takes place at the planning or decisionmaking level, while ministerial acts are performed at the operational level of government. QUESTION ID: T0116 Additional Learning
An action for loss of services or consortium may be brought by __________ for injuries to __________ caused by the defendant’s tortious conduct.
A any family member; any other family member
B a spouse only; a spouse
C a spouse or parent; a spouse or child
D a spouse, parent, or child; a spouse, child, or parent
C
An action for loss of services or consortium may be brought by a spouse for injuries to the other spouse or a parent for injuries to a child. In most jurisdictions, both husbands and wives may recover damages for loss of their spouse’s consortium or services because of injuries to the spouse from defendant’s tortious conduct, whether intentional, negligent, or based on strict liability. Similarly, a parent may maintain an action for loss of the child’s services and consortium when the child is injured as a result of the defendant’s tortious conduct. However, this type of action cannot be brought by any family member for injuries to any other family member; for example, it cannot be brought by a child for injuries to a parent in most states. QUESTION ID: T0113 Additional Learning
Which of the following is correct regarding actions for wrongful death?
A Only the personal representative of the decedent may bring the action
B Wrongful death actions do not allow for recovery of the decedent’s pain and suffering
C Creditors of the decedent have a claim against the amount of recovery awarded
B
Wrongful death actions do not allow any recovery for a decedent’s pain and suffering; those damages would be an element of a personal injury survival action brought on behalf of the decedent. The measure of recovery in wrongful death actions under most statutes allows recovery for loss of support, loss of companionship, etc. The personal representative of the decedent is NOT the only party that may bring a wrongful death action. In some jurisdictions, the personal representative is the proper party to bring the action; in others, the surviving spouse or next of kin is the proper party. Creditors of the decedent have NO claim against the amount of recovery rewarded. QUESTION ID: T0111C Additional Learning
