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23 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Tort law is:
A: Law that provides civil remedy for wrongfully inflicted injury.
B: Law that governs claims for civil injury when the person or entity bringing the claim (Plaintiff) and the person or entity against whom the claim is filed (Defendant) are not in a contractual relationship.
C: Law that governs civil claims for physical injury but excluding claims that are only for property damage.
D: Law that governs civil claims for physical injury but excluding claims that are only for property damage.
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A: Law that provides civil remedy for wrongfully inflicted injury.
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The first answer is not a complete definition of tort law, but it is the best answer because the other answers are erroneous. Tort law is not "federal" common law. To a large extent, tort law has developed through state judicial opinions. People who are in a contractual relationship might have claims against each other in tort. (Example: P enters a contract to buy D's house, and D accidentally runs over P when P is visiting the property and D is on her riding lawnmower.) A tort claim can be brought for property damage. (Example: A camper carelessly fails to extinguish a fire, and the fire burns down P's home while P is not in it). |
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Common law is
A: A body of laws passed by judges rather than legislatures.
B: A body of law resulting from individual opinions decided by judges.
C: A process that existed in England but that American law never followed.
D: Another name for tort law.
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B: A body of law resulting from individual opinions decided by judges. |
Judges do not "pass" laws. They decide cases and, in the process of deciding the case, the judges make rulings that may include legal principles. Common law did exist in the early English law, and the process of the common law came to America with the colonists; American courts also used the common law process. "Common law" is not synonymous with tort law because other areas of law--including contracts, property, criminal, etc.--have also grown from or consist of common law. |
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A plaintiff in a tort case can be:
A: A corporation, but only under a theory of vicarious liability.
B: A minor child, as long as the court approves.
C: State governments and units of state government but not the federal government.
D: A natural person or entity.
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D: A natural person or entity.
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In general, an entity, including a corporation, can be a plaintiff in a tort claim; the doctrine of vicarious liability does not relate to who can be a plaintiff but instead to who may be liable in tort. In general, a minor may bring a claim in tort but only if an adult authorized by law as a guardian or next friend files the claim. Government entities can be plaintiffs in a tort case. |
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The Restatement of Torts is:
A: A synthesis and statement of the law of torts and is not the "law" in any given jurisdiction unless expressly adopted.
B: A collection of model statutes drafted by an influential group of judges, professors, and practitioners.
C: An influential authority that presumptively governs in many states unless the courts of that state decide otherwise.
D: An effort to restate tort law after the passage of tort reform.
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A: A synthesis and statement of the law of torts and is not the "law" in any given jurisdiction unless expressly adopted. |
Because tort law is common law, the Restatement of Torts--which is a synthesis and statement of tort law--is not a set of model statutes. The Restatement is not presumptively the law in a given state. The Restatement of Torts has been around since 1935, and thus it started long before tort reform (although the newer Restatements take tort reform into account). |
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Tort reform:
A: Has replaced the common law of torts in all states with statutes that provide for the remedies and rights that tort once provided.
B: Has created an alternative set of rights and remedies that plaintiffs can pursue rather than tort.
C: Is the term for a movement that, in almost every state, has modified some features of traditional tort common law.
D: Is a movement that has modified tort common law in most states but that has not had much effect on rights and remedies. |
C: Is the term for a movement that, in almost every state, has modified some features of traditional tort common law. |
There is no state where tort reform has replaced all of the common law of torts with statutes. Instead, tort reform statutes have selectively changed parts of tort law (for instance, placing a statutory cap on damages). Tort reform is not an alternative set of rights and remedies. Tort reform's has affected rights and remedies; the effect has not been minor (although we will understand this more as the semester goes on). |
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The following best describes the allocation of authority for decisions about issues of fact and issues of law in a tort claim:
A: The judge ordinarily decides both issues of law and issues of fact.
B: The jury decides issues of fact and any issues of law that the judge delegates to the jury to decide.
C: Unless the judge is sitting as trier of fact (the parties have agreed to this), the jury serves as the trier of fact and thus decides issues of fact; the judge decides questions of law.
D: The jury decides only pure questions of fact and the judge decides mixed questions of law and fact.
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C: Unless the judge is sitting as trier of fact (the parties have agreed to this), the jury serves as the trier of fact and thus decides issues of fact; the judge decides questions of law. |
It's true that a judge may decide issues of fact, but only if both sides have agreed to a "bench" trial (no jury). Judges decide issues of law; they do not "delegate" these to juries. Juries decide both "pure" factual issues and also questions that involve a mixture of law and fact. |
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The jury (or, if it is a bench trial, the judge):
A: Decides empirical facts but not questions that require the jury to apply the law..
B: Gives recommended answers, in a verdict, to both pure fact questions and mixed questions of law and fact.
C: No longer makes decisions about damages in many states, given tort reform that caps damages.
D: Answers factual questions, which can include pure empical factual questions and "mixed" questions of law and fact. |
D: Answers factual questions, which can include pure empical factual questions and "mixed" questions of law and fact. |
The jury can answer both "pure" factual questions (e.g., was John driving the car at the time of the accident; was the light red?) and mixed law-fact questions that involve applying law to facts (was John negligent?). The jury's verdict is not a set of recommended answers; the judge may disregard the jury's findings but only if the judge can satisfy the standards for disregarding or ruling notwithstanding the jury's findings. The jury makes decisions about damages even in jurisdictions that "cap" damages; there still is a need for a findings relating to damages, and this is a fact question. |
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In an appeal of a tort case:
A: May only appeal errors made by the trial judge.
B: May appeal errors made by the trial judge or errors made by the jury.
C: Usually appeals errors by the trial judge but in special circumstances may appeal errors by the jury.
D: May only appeal errors that the trial judge made once the trial started.
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A: May only appeal errors made by the trial judge. |
An appeal must always be of an alleged error by the trial judge. See FF p. 15. The trial judge's error might be connected to something the jury did--for instance, the appeal might be that the trial judge erred in granting judgement on the verdict rather than in granting judgment notwithstanding the verdict. Also, alleged errors made before trial can be the subject of an appeal (example: denying the defendant's motion for summary judgment, or denying one party's effort to strike a juror for cause (such as bias). |
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Tort law:
A: Primarily reflects the goal of corrective justice.
B: Primarily reflects the effort to balance rights arising from the relationship between a plaintiff and defendant.
C: Reflects multiple goals.
D: Primarily seeks to achieve optimal deterrence of accidents and intentional wrongs, with secondary attention to corrective justice or to the "rights" of the injurer or the victim. |
C: Reflects multiple goals. |
Corrective justice is one goal that tort law reflects, but there is no agreement that tort law in general primarily reflects this goal. Also, tort law reflects the goal of addressing a wrong that occurs given the moral rights of an injurer and victim; again, though, there is no agreement that this is primarily the goal of tort law. Optimal deterrence of wrongful conduct (accidents and intentionally caused harm) is certainly an important goal, and has dominated much of the last 50 years in the scholarship and public debate about tort. But it would be inaccurate to say that "rights" or justice are "secondary" goals; this might depend on the particular court you are addressing or the particular scholar who is discussing torts. |
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The following best describes the relationship of compensation and tort law:
A: Because tort compensates people who are injured, a goal of tort law is compensating injured people.
B: The goal of compensating injured people should be viewed as a significant goal of tort law.
C: Compensating people who are injured under certain conditions or circumstances (such as intentional or negligent conduct by another) is a goal of tort law, but this means that "compensation alone" is hard to identify as an independent goal of tort law.
D: Compensation is the same as corrective justice, which is an important goal of tort law.
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C: Compensating people who are injured under certain conditions or circumstances (such as intentional or negligent conduct by another) is a goal of tort law, but this means that "compensation alone" is hard to identify as an independent goal of tort law. |
Compensation is certainly a consequence of a tort judgment. We will often see courts state that "compensation is a goal" of tort law. But, for reasons explained at FF p. 21, there are problems with saying that "compensation" should be viewed as a significant goal of tort law. Compensation and corrective justice are not the same notions. If A and B are walking down the sidewalk together and A stumbles and falls, sustaining a major leg injury, "compensation alone" says that A should be compensated (and maybe by B?) Corrective justice says there is a moral or justice-based reason to make B compensate A but only if B violated a right of A or failed to live up to a standard of behavior that A, as a matter of justice, can expect. |
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American tort law:
A: Started as common law in England but then developed mostly as statutory law in the United States.
B: Started as common law in England, briefly expanded in the early colonies, and then became the subject of tort reform soon after America won its independence.
C: Started as common law in England, continued as common law in America, and then became an area of common law within each state.
D: Started as common law in England and has remained largely an area of federal common law since then, although there are some differences among the states. |
C: Started as common law in England, continued as common law in America, and then became an area of common law within each state. |
Tort law did not develop mainly as statutory law. "Tort reform" did not begin to occur to any notable degree until the latter part of the 1970s. Tort law is not federal common law. |
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Tort law's relationship to contract law is best described as follows:
A: Parties in a contractual relationship sometimes sue each other on the basis of a tort theory.
B: In both contract law and tort law, the primary goal is to deter the wrongdoer who has breached a duty.
C: Tort law and contract law are both branches of the area of law known as enforcement of breaches of duty.
D: Tort law addresses only injury to persons and property and does not remedy purely economic loss, while contract law addresses economic loss. |
A: Parties in a contractual relationship sometimes sue each other on the basis of a tort theory. |
The first answer is not the single best way of describing the relationship between contract and tort, but it is better than the other three options because all the other three have problems. Although deterrence is an important goal of tort law (in most peoples' view), whether it is THE primary goal is debated, and deterrence is not the primary goal of contract law. There is no "area of law" known as "enforcement of breaches of duty." Tort law sometimes allows recovery for purely economic injury (such as intentional misrepresentation leading to economic loss). As we discussed in class, these "economic" torts will not be covered in this course. |
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Tort law's relationship to criminal law is best described in the following way:
A: In both a tort law case and a criminal law case, the victim can seek a monetary recovery from the wrongdoer.
B: The same action that gives rise to a tort claim might also give rise to a criminal case.
C: In a tort case, the prosecution only needs to show wrongdoing by a preponderance of the evidence, while in a criminal case the prosecution must show wrongdoing beyond a reasonable doubt.
D: Both tort law and criminal law can result in incarceration, although tort law results in incarceration only if there is proof of a high degree of intent. |
B: The same action that gives rise to a tort claim might also give rise to a criminal case. |
The victim cannot seek monetary recovery from the criminal defendant; it is the State that prosecutes, not the victim. In a tort case, there is no "prosecution"-instead, there is a plaintiff. Tort law does not result in incarceration. |
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Stephani viciously hits Alison in the jaw, breaking Alison's jaw. In considering her remedies, Alison:
A: Must choose whether to bring a claim in tort or to bring a prosecution for a crime.
B: May recover compensatory damages in a tort case and punitive (punishment) damages in a criminal case.
C: May bring a tort suit whether or not the district attorney prosecutes Stephani.
D: May bring a tort suit whether or not the district attorney prosecutes Stephani, but only after the district attorney has made the decision whether to prosecute or not. |
C: May bring a tort suit whether or not the district attorney prosecutes Stephani.
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A private person does not get to "bring a prosecution" for a crime. A private person does not recover punitive damages in a criminal prosecution, but he or she (here, Alison) may seek punitive damages in tort. Alison can choose to bring a tort suit whether or not the DA prosecutes, and Alison's tort case does not depend on whether or when the DA prosecutes. |
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The common law process:
A: Is another word for tort law.
B: Was eliminated by tort reform.
C: Was strengthened by tort reform.
D: Is not specific to tort law.
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D: Is not specific to tort law.
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The common law process is not another word for tort law because the common law process extends to other areas of law and is not confined to tort. Tort reform did not eliminate the common law process: judges still decide cases and evolve rules and principles even after tort reform. The process was not strengthened by tort reform. |
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In this class, specific sections or comments in the Restatement of Torts:
A: Will always reflect the working "black letter" law or doctrinal law for the area we are covering.
B: Will often but not always reflect the predominant current doctrine or judicial consensus on an element or issue.
C: Will always reflect the preferred doctrine because the Professor in this course likes the Restatement.
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B: Will often but not always reflect the predominant current doctrine or judicial consensus on an element or issue. |
Restatement sections used in this course (whether cited in cases or given to you on Canvas) are not the only "source" for the doctrines that we will use. We will use many others (such as holdings in cases, other writings, etc.). Sections of the Restatement do not always reflect the current preferred doctrine. Possibly we will be reading a case that cites a Restatement provision that is now obsolete or reflects the minority viewpoint. |
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A child:
A: Can be a defendant in a tort action but not a plaintiff.
B: No answer text provided.
C: Can never have the necessary intent for intentional torts; however, courts will impute intent if the policies of tort support this.
D: Can be a plaintiff or a defendant in a tort case, although an adult might need to serve as the representative for the child. |
D: Can be a plaintiff or a defendant in a tort case, although an adult might need to serve as the representative for the child. |
Children can sue in tort. They also can have the necessary intent (see Garratt v. Dailey); the court does not "impute" intent to a child, and this did not happen in Garratt. |
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In Garratt v. Dailey, the most likely reason why the trial court sat as trier of fact was:
A: Washington State did not use juries in tort cases at that time.
B: Each party agreed to allow the judge sit as trier of fact.
C: The plaintiff chose not to ask for a jury given concerns that a jury might sympathize with a child.
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B: Each party agreed to allow the judge sit as trier of fact. |
Nothing that we read suggests that Washington State did not have jury trials; indeed, this would contradict everything we have read generally about tort cases (Ken Abraham, for instance). It is possible--as we discussed--that the plaintiff's concern about sympathy for a child motivated the plaintiff not to ask for a jury. But this is not as good an answer to the question as the previous answer; each party has to agree not to have the jury trial. |
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When a plaintiff or defendant appeals,
A: The appeal must always be based on one or more alleged errors that the trial judge made.
B: The appeal is often based on one or more alleged errors that the trial judge made, but only if the error occurs after the pretrial phase is over.
C: The appeal must always allege an error that the trial judge made or identify an especially prejudicial or disruptive action by a juror, witness, or lawyer. |
A: The appeal must always be based on one or more alleged errors that the trial judge made. |
The errors that can form the basis of appeal do not have to be "after" the pretrial phase. Even if a witness said something prejudicial, this itself isn't what is being appealed; rather, it is the trial judge's ruling or lack of ruling in relation to this. The prima facie case refers to: You Answered All the elements that a plaintiff in a tort case must allege in his or her pleading, because if the plaintiff does not allege all the elements the plaintiff will lose regardless of what the defendant does or does not show. Correct Answer All the elements that a plaintiff in a tort case has the burden of proof to establish a claim for relief.
All the elements in a tort case that, once proven by a plaintiff, will allow the plaintiff at least a partial recovery even if a defendant establishes a defense such as consent. |
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The prima facie case refers to:
A: All the elements that a plaintiff in a tort case must allege in his or her pleading, because if the plaintiff does not allege all the elements the plaintiff will lose regardless of what the defendant does or does not show.
B: All the elements that a plaintiff in a tort case has the burden of proof to establish a claim for relief.
C: All the elements in a tort case that, once proven by a plaintiff, will allow the plaintiff at least a partial recovery even if a defendant establishes a defense such as consent. |
B: All the elements that a plaintiff in a tort case has the burden of proof to establish a claim for relief.
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It is true that a plaintiff must allege all the elements of a prima facie case, but the prima facie case really refers to all the elements that a plaintiff must prove in order to establish a claim for relief. It is not true that, once a plaintiff establishes the prima facie case, he or she will always win at least a partial recovery; a defendant might win on a defense. |
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Ruth lost at the trial level in Garratt v Dailey because
A: The trial court found that intent cannot be established by knowledge with substantial certainty.
B: The trial court adopted Brian's version of the events.
C: The trial court found that Brian did not have the requisite intent for battery. |
C: The trial court found that Brian did not have the requisite intent for battery. |
The trial court did not rule that intent cannot be established by knowledge w/ sub. certainty. See p. 3, last full paragraph on left column. And, while it is true that the trial court adopted Brian's version, this is not as good an answer as the next answer, which is more complete. |
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The trial court made a finding of damages in Garratt v. Dailey:
A: Because, when sitting as triers of fact, trial courts always make a finding of damages.
B: No answer text provided.
C: Because, when sitting as a trier of fact, the trial court may make a finding of damages and, in this case, the court chose to do so.
D: Because the trial court did not want the appeals court to make the finding of damages in the event that the appeals court reversed the trial court. |
C: Because, when sitting as a trier of fact, the trial court may make a finding of damages and, in this case, the court chose to do so. |
Trial courts, when sitting as a trier of fact, may find damages, but do not have to do so when, as here, they dismiss the case. The trial court might have thought that reversal was a possibility, but the appeals court may not "find" damages. |
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Tort law is:
A: Law that provides civil remedy for wrongfully inflicted injury.
B: Law that governs claims for civil injury when the person or entity bringing the claim (Plaintiff) and the person or entity against whom the claim is filed (Defendant) are not in a contractual relationship.
C: Law that governs civil claims for physical injury but excluding claims that are only for property damage.
D: Law that governs civil claims for physical injury but excluding claims that are only for property damage. |
A: Law that provides civil remedy for wrongfully inflicted injury. |
The first answer is not a complete definition of tort law, but it is the best answer because the other answers are erroneous. Tort law is not "federal" common law. To a large extent, tort law has developed through state judicial opinions. People who are in a contractual relationship might have claims against each other in tort. (Example: P enters a contract to buy D's house, and D accidentally runs over P when P is visiting the property and D is on her riding lawnmower.) A tort claim can be brought for property damage. (Example: A camper carelessly fails to extinguish a fire, and the fire burns down P's home while P is not in it). |
