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5 Cards in this Set

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Al owns a home next to the multi-story parking garage of Springfield Mall, owned and operated by the Peg Co. The parking structure is open at the sides, and it backs up to a narrow alley. Al's home is just across the alley. On days when Al works the late shift in the mall, he likes to sleep until noon. A recent rash of auto thefts has led the Peg Co. to install alarms on all twenty vehicles it uses for security at Springfield Mall. Almost every morning, one or more of the alarms activate when the vehicles are touched by mall patrons or when heavy delivery trucks lumber by. The alarms make extremely loud siren-like sounds until mall employees turn them off, which sometimes takes thirty minutes. This has caused Al to lose a great deal of sleep, and the Peg Co. has refused his requests to remove the alarm systems from the vehicles.

If Al sues the Peg Co. for nuisance, which of the following statements is most likely correct?

(A) Because the noise from the car alarms harms to the general public, the appropriate redress is through an action for public nuisance. Therefore, Al's action will fail.

(B) Because the Peg Co. does not intentionally set off the alarms, Al's action will fail.

(C) Because the sound from the alarms poses an abnormally high danger to Al and others in the community, Al's action will succeed.

(D) If the jury finds that the noise substantially interferes with Al's sleep and that a reasonable person could prevent the alarms from going off so easily or could arrange to have the alarms shut off more quickly, Al's action will succeed.
Answer (D) is correct. Nuisance is the substantial and unreasonable interference with plaintiff's use and enjoyment of property. It can be based on conduct that qualifies as intentional, negligent, or abnormally dangerous. Here, Peg Co.'s conduct interferes with Al's sleep to a degree that a jury might find substantial. In addition, a jury might find it unreasonable to impose this burden on Al. (This would be especially true if a reasonable company would make the alarms to be less sensitive or silence them more quickly.)

Public nuisances are those that affect the entire community in much the same way.

Answer (A) is incorrect because the noise from Peg Co. vehicles affects Al differently than it affects other people. Of course, others might suffer in the same way as Al, but only those whose homes are as close to the garage as Al's. This is more a private matter than a community-wide matter.

Answer (B) is incorrect for two reasons. First, Peg Co.'s behavior is intentional. "Intent" may be shown either by a desire to bring about the event or by knowledge that the event is substantially certain to occur. Though Peg Co. probably does not want the alarms to go off when there is no criminal activity, it certainly is aware that this is happening. Second, an action for nuisance may be based on intentional conduct, but does not have to be based on such conduct.

Answer (C) is incorrect because there is no suggestion in the facts that creation of the noise is an abnormally dangerous activity. In fact, it would not qualify as such because most of the factors listed in Restatement (Second) of Torts § 520 are not satisfied. (For example, the risk of harm is not very great; the harm itself, while not negligible, is not as great as harm that normally qualifies as abnormally dangerous; car alarms are commonly used; and the risk can be eliminated or substantially reduced by the exercise of reasonable care.)

Jessamyn purchased a Tootlin' TX model sport utility vehicle from a retail dealer. Within a year of the sale, the entire body of the Tootlin' TX was covered in rust. She brought an action against the manufacturer, TTX Inc. It emerged in discovery that TTX Inc. had used on 500 of its Tootlin' TXs an inferior grade of paint that it had bought very cheaply from a disreputable supplier. An internal document revealed that TTX Inc. had recommended to dealers that these inferior vehicles be sold "whenever possible" to women, minorities, and customers likely not to qualify for favorable financing, because "they're too intimidated to complain and they don't know the [state] 'lemon laws'." A jury awarded Jessamyn $30,000 in compensatory damages and $80,000 in punitive damages.

Is the punitive damages portion of the award proper under the Supreme Court standard expressed in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)?

(A) Yes, because a jury could reasonably find that TTX Inc. acted with actual malice.

(B) Yes, because TTX Inc.'s behavior is reprehensible, the ratio of punitive to compensatory damages is not too high, and potential sanctions for comparable misconduct are likely to be similar.

(C) No, because this standard pertains only to personal injury damages, not the property damage experienced here.

(D) No, because punitive damages claims are preempted by deceptive trade practices statutes like "lemon laws."
Answer (B) is correct. The three criteria mentioned are the ones provided in the BMW decision, and they are met under these facts.

Answer (A) is incorrect because the BMW decision does not discuss actual malice. A similar concept is included in the reprehensibility criterion, but "actual malice" is a term of art not used here.

Answer (C) is incorrect because there is no separate rule for personal injury cases. (Ira Gore, the plaintiff in BMW of North America Inc. v. Gore, suffered only economic loss based on property damage.)

Answer (D) is incorrect because punitive damages claims are not preempted by "lemon laws."
Defenses to Negligence

Which of the following statements about assumption of risk is LEAST accurate?

(A) It must be voluntary.

(B) The majority of jurisdictions now regard it, in its implied form, as comparable to comparative negligence.

(C) It must be manifested to the defendant.

(D) The plaintiff must have understood the risk.
Answer (C) is correct. The defendant need not have been aware of the plaintiff's assumption of risk at the time of the injury, and the plaintiff need not have communicated this assumption of risk to the defendant.

Answer (A) is incorrect. Volition, or voluntariness, is an element of assumption of risk.

Answer (B) is incorrect because most jurisdictions have merged implied assumption of risk together with comparative negligence. Both doctrines reduce, but do not eliminate, the plaintiff’s recovery.

Answer (D) is incorrect. Knowledge of the risk is an element of assumption of risk.
Intentional Torts: False Imprisonment

Well after midnight, the night manager of the Empire Hotel got a call from the River City Police Department (RCPD) informing her that Pushkin, a hotel guest, was a terrorist. The caller asked the manager to detain Pushkin for a few hours until the police could arrange a reliable and safe way to arrest him. The manager agreed. From the late hour, the manager assumed that Pushkin was in the room. She then locked what she believed to be Pushkin's door from the outside. Two hours later, she discovered that she had locked the door to Peter's room instead of Pushkin's. Peter slept through the whole thing, but when he found out that he'd been locked in his room, he sued the Empire Hotel for false imprisonment.

Which of the following statements is correct?

(A) Peter will prevail because he was actually confined.

(B) Peter will prevail if his distress on learning of his prior confinement was severe.

(C) Peter will lose because he was unaware of the confinement until later, and he suffered no physical harm as a result of his confinement.

(D) Peter will lose because the manager did not intend to confine him.
Answer (C) is correct. When a person is unaware of his confinement during the time he is confined, he may only recover for false imprisonment if he suffered physical injury as a result of the confinement. Because Peter did not learn of his confinement until after it had ended, and because he was not physically injured by the confinement, he may not recover for false imprisonment.

Answer (A) is incorrect because actual confinement is not sufficient.

Answer (B) is incorrect because, even if the emotional effects of learning of the confinement are severe, the plaintiff who was unaware of the confinement while it was occurring may not recover for false imprisonment unless the plaintiff was physically injured.

Answer (D) is incorrect because false imprisonment is a "trespassory tort," and intent to confine one person will "transfer" to the person actually confined. Thus, it does not matter that the manager intended to confine a different person.
Negligence: Breach of Duty

Sam and Rebecca, both 10, were playing "tag" in the park. At one point, Sam lunged toward Rebecca to tag her. He missed and instead hit Lily, a jogger who was running past at the time. Lily fell to the ground, injuring her knee. Lily sues Sam for negligence to recover for her knee injury.

Which of the following statements is most likely correct?

(A) Because Sam was a young child, he cannot be liable for negligence.

(B) Because Sam was a child engaged in the kind of activity normally associated with children, he did not owe Lily a duty to act reasonably.

(C) Because Sam was a child engaged in the kind of activity normally associated with children, the jury will be allowed to consider his age when determining whether he breached his duty of reasonable care toward Lily.

(D) Because Sam was engaged in a dangerous game, he was required to exercise the same degree of care as a reasonably prudent adult.
Answer (C) is correct. Sam was engaged in a child's game. Some courts would also take note that the game was not a dangerous game (which is one reason it's considered a child-like activity). Most courts hold that the jury may consider the child's age in such cases when deciding whether the child acted reasonably. One reason for the rule is to encourage children to learn from experience, which benefits them (and those around them) when they grow up.

Answer (A) is incorrect because children can be liable for negligence. There is no categorical rule in most jurisdictions forbidding that. Though some states use a "rule of 7" to immunize children under 7 for certain torts, that rule will not apply because Sam was 10.

Answer (B) is incorrect because even a child engaged in a child's activity can act negligently. This would be true if Sam did not exercise the care and skill that would be exercised by a reasonable person of roughly his age.

Answer (D) is incorrect because the game was not dangerous, at least not in the way activities normally deemed "adult" are dangerous.