Helix BBQs Torts: Negligence With Explanations

1. Which of the following is a required element for any negligence claim?

B.Breach.

Solution: The correct answer is B.

Answer option B is correct. Every negligence claim must allege that the defendant breached a duty of care that it owed. Absent special circumstances, there is no affirmative duty to act. If it is difficult or impossible for a plaintiff to prove but-for causation, a court may substitute the “substantial factor” test to allow the plaintiff to prove factual causation.

2.  In general, the likelihood that a defendant will be deemed to have had an affirmative duty to protect a plaintiff is a function of which of the following?

C.The closeness of the association between the defendant and plaintiff.

Solution: The correct answer is C.

Answer option C is correct. The no-duty-to-rescue rule usually applies either to bystanders or to those having loose associations with each other. An affirmative duty to act can be based upon: (1) a status relationship; (2) a commercial relationship; (3) a voluntary undertaking; (4) co-adventure; (5) a defendant-created danger; or (6) a duty imposed by statute.

3. A waiter was aware of a restaurant patron’s food allergy and promised to let the patron know of any allergens present in the food ordered by the patron.

Which of the following theories would support a finding that the waiter owed the patron a duty to warn of allergens?

D.Voluntary undertaking.

Solution: The correct answer is D.

Answer option D is correct. A person who voluntarily creates an expectation of safety ordinarily has an affirmative duty to act.

4. Which of the following categories of potential defendants is LEAST likely to have a general duty to protect third parties?

D.Neighbors.

Solution: The correct answer is D.

Answer option D is correct. People generally have no duty to protect others from harm, but important exceptions includes: (1) parent/child or close family relationships; (2) employer/employee relationships; (3) custodial relationships; and (4) property owners.

 

5. A skateboarder slipped and fell while practicing in an alleyway. A nearby pedestrian heard the skateboarder call for help but walked away. Many hours passed before the skateboarder received medical aid, and the skateboarder suffered injuries as a result of the delay.

For what reason is the skateboarder unlikely to recover against the pedestrian?

A.Because a person is not ordinarily liable simply for a failure to rescue.

Solution: The correct answer is A.

Answer option A is correct. The skateboarder’s only claim is that the pedestrian failed to help him, and simple failure to rescue is generally insufficient to establish liability under negligence law. Neither the reasonableness of the defendant’s conduct nor the foreseeability of injuries creates liability where there is no duty owed to begin with.

6. Which of the following is most likely to be regarded as an “unforeseeable plaintiff,” to whom no duty is owed?

C.A person far away from a dangerous act who is unknown to the defendant.

Solution: The correct answer is C.

Answer option C is correct. A plaintiff may be deemed unforeseeable if the plaintiff’s injury is distant from the defendant and the defendant’s conduct.

7. Which of the following is an example of “crushing liability?”

D.A situation where the defendant’s liability could extend to an almost unlimited number of plaintiffs.

Solution: The correct answer is D.

Answer option D is correct. Courts may refuse to hold a negligent defendant liable where the liability would be excessive or “crushing,” for instance, when there is an extremely large class of plaintiffs. This limitation is imposed for public policy reasons. Courts sometimes say the defendant has “no duty” to the whole world.

8. Landowners generally have no duty to people off the land with regard to which of the following?

A.Natural conditions on the land.

Solution: The correct answer is A.

Answer option A is correct. In general, landowners owe persons off the land a duty of reasonable care only with regard to human-made conditions (e.g., a fence) or activities (e.g., hunting) on the land. On the other hand, landowners generally have no duty to those off the land with regard to natural conditions on the land, such as a stream. The one traditional exception to this rule is for trees in urban areas (the landowner must maintain such trees to protect passersby from injury).

9. Under the attractive nuisance doctrine, a landowner will owe a duty of reasonable care to a child trespasser if all EXCEPT which of the following requirements are satisfied?

A.There is a risk of death or serious bodily harm to the child, due to a natural condition of the land.

Solution: The correct answer is A.

Answer option A is correct. A prerequisite for use of the attractive nuisance doctrine is that the risk to the child be due to a human-made condition.

10. Which of the categories below accurately describes the status of a burglar breaking and entering into another’s home?

C.Flagrant trespasser.

Solution: The correct answer is C.

Answer option C is correct. A trespasser is considered flagrant if he is concurrently engaged in other criminal conduct, such as a burglary.

11. People who enter land because it is open to the public are typically considered which of the following?

A.Invitees.

Solution: The correct answer is A.

Answer option A is correct. The two types of invitee are: (1) people who enter land because it is open to the public (stores, parks, etc.); and (2) people who enter land to provide a “material benefit” to the landowner, such as business visitors.

12. Which of the following terms best characterizes a party guest, for purposes of landowner liability?

A.Licensee.

Solution: The correct answer is A.

Answer option A is correct. A licensee is a person who enters the land with the landowner’s permission but who does not meet the criteria to be considered an invitee. Most social visitors are licensees.

13. A skater’s rollerblades were defectively manufactured, and two wheels fell off as soon as the skater used the rollerblades. The skater left the broken wheels in the middle of an alley and walked away. Several minutes later, a jogger stumbled over one of the wheels, injuring her ankle. The jogger called for help, and the skater heard her but continued walking away.

Which of the following arguments offers the best chance of recovery against the skater?

B.A defendant must use reasonable care to manage a danger he himself created, even if he did so non-negligently.

Solution: The correct answer is B.

Answer option B is correct. Persons who create a danger, even non-negligently, are obligated to use reasonable care to reduce that danger.

14. Which of the following best describes the standard of care to which a physician would be held when treating a patient?

B.The standard of a reasonable medical professional in good standing.

Solution: The correct answer is B.

Answer option B is correct. In negligence law, professionals are held to the standards of their professional community, i.e., higher than the ordinary reasonable person standard.

15.Which of the standards below is used to evaluate whether a patient gave her informed consent to an invasive medical procedure?

C.The physician provided the information that a reasonable patient would consider adequate.

Solution: The correct answer is C.

Answer option C is correct. If a patient sues a doctor for not telling the patient enough about the risks of a procedure, or otherwise not properly obtaining informed consent from the patient, the level of information the doctor provided is judged against what a reasonable patient would want to know.

 

16.A man agreed to let his neighbor borrow his virtual reality headset while he was out of town on vacation. When the man returned, the headset was damaged.

If the man sues the neighbor, what standard of care will apply?

C.The duty of extraordinary care.

Solution: The correct answer is C.

Answer option C is correct. Bailees can be liable if the property is damaged while they are in possession of it. When, as here, the bailment is for the exclusive benefit of the bailee, most jurisdictions impose on the bailee a duty of extraordinary care.

17. Which of the following is NOT an element required to establish negligence per se?

D.The defendant violated a criminal statute that provides for imprisonment.

Solution: The correct answer is D.

 

Answer option D is correct. Negligence per se requires that the defendant have violated a safety law, which may be a statute, regulation, or ordinance. There is no need for the law to provide for imprisonment.

 

18.A defendant could defeat the application of negligence per se by showing any EXCEPT which of the following?

C.Compliance with the safety law would have imposed a crushing financial burden on the defendant.

Solution: The correct answer is C.

Answer option C is correct. Although there is considerable variation in what may be considered a legitimate excuse for a defendant’s noncompliance with a safety law for purposes of negligence per se, three are generally recognized as legitimate: (1) compliance with the safety law would have imposed a greater risk of harm than noncompliance; (2) compliance with the safety law was impossible due to circumstances beyond the defendant’s control (e.g., a sudden brake failure not due to the defendant’s negligence); or (3) the defendant acted reasonably but nevertheless was unable to comply with the safety law.

19. Which of the following is NOT an element of res ipsa loquitur?

C.The defendant’s fault did not contribute to the injury.

Solution: The correct answer is C.

 

Answer option C is correct. The doctrine of res ipsa loquitur (“the thing speaks for itself”) can be applied to cases where: (1) the event that led to the injury was of the type that wouldn’t ordinarily occur had there been no negligence; (2) the injury was caused by an instrumentality solely within the defendant’s control, and (3) the plaintiff’s fault did not contribute to the injury.

20. The doctrine of res ipsa loquitur would most likely be applicable to which of the following fact patterns?

C.The plaintiff bought a loaf of bread from the defendant’s bakery and later chipped her tooth on a pebble in the loaf.

Solution: The correct answer is C.

 

Answer option C is correct. It best fulfills the three elements of res ipsa loquitur: the accident couldn’t have happened without breach of reasonable care, the injury was caused by an instrumentality solely within the defendant’s control, and the plaintiff’s fault did not contribute to the accident.

21. Which of the following people would most likely NOT be held to the usual objective standard of care when determining their negligence liability?

C.A 22-year-old who is deaf.

Solution: The correct answer is C.

Answer option C is correct. People with serious physical impairments are judged by a standard that recognizes their physical limitations.

22. Where more than one defendant is negligent at the same time, but it is uncertain which defendant caused a plaintiff’s injury, a court may shift the burden to the negligent defendants to show that they were not causes.

This is referred to as which of the following?

B.Alternative liability.

Solution: The correct answer is B.

Answer option B is correct. When there are a small number of defendants and it is unclear which negligent defendant was the factual cause of the plaintiff's injury, the court may shift the burden to the defendants to show that they were not causes.

23. All the following statements accurately describe joint tortfeasors, except which?

C.Each joint tortfeasor must directly cause some harm to the plaintiff.

Solution: The correct answer is C.

Answer option C is correct. Joint tortfeasors are persons who act together while behaving unreasonably. So long as at least one of the joint tortfeasors caused the plaintiff’s injury while acting within the scope of the joint venture, all joint tortfeasors are treated as causes. An individual defendant need not have directly harmed the plaintiff to be subject to liability.

24.Which of the following refers to the general common law rule of apportionment of fault?

B.Joint-and-several liability.

Solution: The correct answer is B.

Answer option B is correct. “Joint and several liability” is the general common law rule of apportionment of fault.

 

25. Under the doctrine of joint-and-several liability, which of the following is true?

B.The plaintiff can recover full damages from any defendant who is found to be at fault.

Solution: The correct answer is B.

Answer option B is correct. Under the doctrine of joint-and-several liability, where more than one defendant is found to be at fault for the plaintiff’s injury, the plaintiff may recover fully from any of them.

26. A pickup truck and an SUV collided, causing injury to a pedestrian on the sidewalk. In a lawsuit brought by the pedestrian, the driver of the SUV was found to be 2/3 responsible for the pedestrian’s injuries, and the driver of the pickup truck was found to be 1/3 responsible.

Under the rule of pure comparative negligence with joint-and-several liability, which of the following is a correct statement regarding the pedestrian’s recovery of damages?

D.The plaintiff can recover any damages she was awarded from either driver, and a driver who pays has a right of contribution against the other driver for any amount he paid beyond his individual share of responsibility.

Solution: The correct answer is D.

Answer option D is correct. Under the rules of pure comparative negligence with joint-and-several liability, if several defendants are liable for the same harm and one of them pays damages for that harm, that defendant normally has a right of contribution against the other defendants and may recover from them the amount that the defendant paid beyond his individual share of responsibility.

27. Three tests are used to establish proximate cause: “directness and remoteness,” “foreseeability,” and which of the following?

B.Scope of liability.

Solution: The correct answer is B.

Answer option B is correct. The tests courts use to evaluate proximate causation are directness/remoteness, foreseeability, and scope of liability.

28. A plaintiff in a negligence action generally must establish that she suffered which of the following harms as a result of the defendant’s breach?

B.Actual harm.

Solution: The correct answer is B.

Answer option B is correct. A plaintiff in a negligence action generally must establish that she suffered some actual harm as a result of the defendant’s breach.

29. Which of the following types of damages is available in a negligence lawsuit only if the plaintiff can prove that the defendant’s conduct was willful, wanton, or malicious?

A.Punitive.

Solution: The correct answer is A.

Answer option A is correct. Punitive damages are permitted only in negligence lawsuits where the plaintiff can also show that the defendant’s conduct was willful, wanton, or malicious.

30. A man was mistakenly told by hospital personnel that his wife had perished in an accident. A month later, he discovered that she had been misidentified and was in a medical clinic in a neighboring town.

 

The man is most likely to be successful in which of the following claims against the hospital?

D.Negligent infliction of emotional distress.

Solution: The correct answer is D.

Answer option D is correct. Liability for emotional harm may arise where a defendant negligently misinforms the plaintiff that a relative died or was seriously injured.

31. All EXCEPT which of the following circumstances can give rise to negligence liability for pure emotional harm?

B.Learning of a close relative suffering physical harm.

Solution: The correct answer is B.

 

Answer option B is correct. Circumstances giving rise to negligence liability for pure emotional harm are: (1) zone of danger; (2) observing a close relative suffering; (3) mutilated corpse of a close relative; and (4) miscommunication of death or serious injury of a close relative. Merely learning about a close relative suffering physical harm is insufficient.

32. Which of the following statements correctly describes negligence cases involving purely economic loss?

D.Liability exists only for professional defendants or for misrepresentation in a business context.

Solution: The correct answer is D.

Answer option D is correct. Plaintiffs who suffer economic loss without physical injury or property damage may not generally recover in a negligence claim. Two exceptions are for negligent infliction of economic loss involving professional defendants and for negligent misrepresentation in a business context.

33. Which of the following practices is barred by the collateral source rule (in states where the rule has not been limited or overturned)?

C.Reducing the plaintiff’s damages because the plaintiff has received aid from family members.

Solution: The correct answer is C.

Answer option C is correct. Under the “collateral source rule,” the fact that a plaintiff has insurance or receives aid from others in response to an injury does not reduce the plaintiff’s damages.

34. Under which of the following theories does even a slightly negligent plaintiff recover nothing from a negligent defendant?

B.Contributory negligence.

Solution: The correct answer is B.

Answer option B is correct. Under contributory negligence, even a slightly negligent plaintiff can recover nothing from a negligent defendant.

35.Under which of the following theories is a plaintiff’s recovery always reduced proportionally based on the percentage of fault allocable to the plaintiff?

A.Pure comparative negligence.

Solution: The correct answer is A.

Answer option A is correct. Under pure comparative negligence, a plaintiff’s recovery is reduced proportionally based on the percentage of fault allocable to the plaintiff.

36. The “last clear chance” doctrine applies only in jurisdictions that recognize which of the following defense theories?

B.Contributory negligence.

Solution: The correct answer is B.

Answer option B is correct. The last-clear-chance doctrine applies only to contributory negligence jurisdictions.

37. In a jurisdiction that applies the doctrine of modified comparative negligence, which of the following facts would make it unlikely for a negligent plaintiff to recover?

C.The plaintiff was more than 50% responsible for the accident.

Solution: The correct answer is C.

Answer option C is correct. Under the doctrine of modified comparative negligence, a plaintiff who is more than 50% at fault may never recover.

38. When a plaintiff fails to mitigate her damages, what is the likely result?

D.The plaintiff’s damages will be reduced to the extent the plaintiff’s injury was exacerbated by the failure to mitigate.

Solution: The correct answer is D.

Answer option D is correct. The duty to mitigate damages relates to the plaintiff’s obligations following an initial injury, and the failure to mitigate operates as a limitation on the damages that may ultimately be awarded for an aggravated or exacerbated injury.

39. In a negligence action, which of the following defenses is NOT based on the plaintiff’s fault?

A.Last-clear-chance doctrine.

Solution: The correct answer is A.

Answer option A is correct. The last-clear-chance doctrine is an exception to the contributory negligence rule. It negates contributory negligence (thus permitting full recovery) where the defendant’s negligence was subsequent to the plaintiff’s and the defendant had the “last clear chance” to avoid the accident by exercising ordinary care. Thus, application of this defense is not dependent on the plaintiff's fault, but on the defendant's ability to avoid the accident.

40. A tenant fell through a loose floorboard at the entrance to his apartment building. The tenant had previously noticed that the floor showed signs of weakness.

In a suit by the tenant against the landlord, which of the following facts would defeat the landlord’s attempt to use implied assumption of risk as a defense?

B.The path over the weak floor was the only way the plaintiff could access his apartment.

Solution: The correct answer is B.

Answer option B is correct. Implied assumption of risk may be applicable when the defendant is negligent in creating a risk, but the plaintiff voluntarily and knowingly approaches that risk. If there was no alternative means of entering his apartment, the tenant did not voluntarily encounter the risk.