Ebook Business Law and The Regulation of Business 12Th Edition Mann Test Bank Full Chapter PDF
Ebook Business Law and The Regulation of Business 12Th Edition Mann Test Bank Full Chapter PDF
Ebook Business Law and The Regulation of Business 12Th Edition Mann Test Bank Full Chapter PDF
TRUEFALSE
1. A blind person will be held to the standard of care of the reasonable blind person rather than that
of the reasonable sighted person for purposes of determining negligence.
(A) True
(B) False
Answer : (A)
2. In applying the reasonable person standard, the court takes into account a person's physical, but
not mental, handicaps.
(A) True
(B) False
Answer : (A)
3. A "reasonable person standard" does not apply to children since they do not have the judgment,
intelligence, knowledge, or experience of adults.
(A) True
(B) False
Answer : (B)
4. The standard of conduct which is the basis for the law of negligence is usually determined by a
cost-benefit or risk-benefit analysis.
(A) True
(B) False
Answer : (A)
5. In the majority of states, in a case of negligence per se, the plaintiff would only have to prove
violation of a statute in order to show negligent conduct.
(A) True
(B) False
Answer : (A)
6. A reasonable person, as used in the law of torts, is a fictitious individual who is always careful,
prudent, and never negligent.
(A) True
(B) False
Answer : (A)
7. The general rule for the standard of care used in tort law is: a person is under a duty to all others
at all times to exercise reasonable care for the safety of other persons and their property.
(A) True
(B) False
Answer : (A)
8. Compliance with a legislative enactment or administrative regulation does not prevent a finding
of negligence if a reasonable person would have taken additional precautions to avoid harm.
(A) True
(B) False
Answer : (A)
9. In most of the states, a sixteen-year-old who drives a car will be held to the same standard of care
in driving as an adult for purposes of determining negligence.
(A) True
(B) False
Answer : (A)
10. Liability for the negligent conduct of a defendant requires not only that the conduct in fact
caused injury to the plaintiff but also that it was the proximate cause of the injury.
(A) True
(B) False
Answer : (A)
11. A defendant will be liable for all harm that can be traced back to the defendant's negligence.
(A) True
(B) False
Answer : (B)
12. All intervening events that occur subsequent to the defendant's negligent conduct will relieve
the defendant of liability.
(A) True
(B) False
Answer : (B)
13. If negligence of the plaintiff and negligence of the defendant proximately caused the injury and
damage sustained by the plaintiff, the plaintiff can recover some damages in those states where
contributory negligence is still recognized.
(A) True
(B) False
Answer : (B)
14. The Love v. Hardee's Food Systems, Inc. case dealt with the responsibility of the owner or
possessor of property to an invitee to warn of, remove, or barricade a dangerous condition of the
premises.
(A) True
(B) False
Answer : (A)
15. Even if a defendant's own negligent conduct created an emergency, he will not be liable for the
consequences of the conduct if he acted with care in the resulting emergency situation.
(A) True
(B) False
Answer : (B)
16. A violation of a statute constitutes negligence per se regardless of whether the injured party is a
member of the class protected by the statute.
(A) True
(B) False
Answer : (B)
17. In some instances, people may be held liable for injuries they have caused even though they
have not acted intentionally or negligently.
(A) True
(B) False
Answer : (A)
18. Tom's dog has bitten three mail carriers, but Tom can't bear to chain him up. When the dog bites
the newsboy, Tom will be strictly liable.
(A) True
(B) False
Answer : (A)
19. If a raccoon gets loose from a cage and harms someone, the owner can escape liability by
showing that he took great care to keep the animal confined.
(A) True
(B) False
Answer : (B)
20. Under the Second Restatement, the owner of land is liable to adult trespassers for failure to
maintain the land in a reasonably safe condition.
(A) True
(B) False
Answer : (B)
(A) True
(B) False
Answer : (B)
22. A widely applied test for causation in fact is the "but for" rule.
(A) True
(B) False
Answer : (A)
23. The duty of employers includes the duty to exercise reasonable care in hiring, training,
supervising, and retaining employees. This duty is independent of the vicarious liability of an
employer for an employee's tortious conduct during the course of employment.
(A) True
(B) False
Answer : (A)
24. If an intervening cause is deemed to be a superseding cause, it does not relieve the defendant of
liability for that harm.
(A) True
(B) False
Answer : (B)
25. A tiger gets loose from the tent of a circus and mauls a passerby. The circus claims it has always
treated the animal well and that it was not at all negligent in its handling of the animal. The circus
has no liability for the injury caused by the animal.
(A) True
(B) False
Answer : (B)
26. If a person's 150-pound sheep dog has a propensity to jump enthusiastically on visitors, the
animal's keeper would be liable for any damages done by the dog's playfulness.
(A) True
(B) False
Answer : (A)
27. The plaintiff must prove that the defendant's negligent conduct proximately caused harm to a
legally protected interest in order to have a valid negligence action.
(A) True
(B) False
Answer : (A)
28. Express voluntary assumption of the risk is a defense to an action based upon strict liability.
(A) True
(B) False
Answer : (A)
29. Ray is informed that his six-year-old child is shooting in the street with a handgun. Ray fails to
take the gun away from the child. The child unintentionally shoots Bill, a pedestrian. Ray is liable to
Bill.
(A) True
(B) False
Answer : (A)
30. Under the Second Restatement, a licensee for purposes of tort law is a person invited upon land
as a member of the public or for a business purpose.
(A) True
(B) False
Answer : (B)
31. Under the Second Restatement, a possessor of land has a legal duty to warn business invitees of
obvious dangers that invitees should be able to discover themselves.
(A) True
(B) False
Answer : (B)
32. Res ipsa loquitur means "the thing speaks for itself" and it permits the jury to infer negligent
conduct and causation from the mere occurrence of certain types of events.
(A) True
(B) False
Answer : (A)
33. In determining a defendant's liability for negligence, his or her superior skill or knowledge will
be attributed in applying the reasonable person standard, thus increasing the chance that the
defendant may be held liable.
(A) True
(B) False
Answer : (A)
34. If a defendant acts under emergency conditions, these conditions will be taken into account in
applying the reasonable person standard.
(A) True
(B) False
Answer : (A)
(A) True
(B) False
Answer : (B)
36. There is an established rule in the law of torts that even one who has not created a peril has a
duty to take affirmative action to assist an imperiled person, no matter what the relationship with
that person, when the imperiled person can be saved from harm at little or no personal risk to the
rescuer.
(A) True
(B) False
Answer : (B)
37. Robert, a salesperson for Brightway Home Products, made a sales call at the Todds' house. The
Todds have no duty of care toward Robert regarding the condition of their property since Robert was
not an invitee or a licensee.
(A) True
(B) False
Answer : (B)
38. Res ipsa loquitur makes it easier for the defendant to prevail in a negligence action.
(A) True
(B) False
Answer : (B)
39. In the majority of states, a defendant is liable for negligently inflicted emotional distress, even in
the absence of resultant physical harm.
(A) True
(B) False
Answer : (B)
40. Even though contributory negligence is proven by a defendant in a state in which it acts as a
complete bar to recovery, the plaintiff may still recover if the defendant had the last clear chance to
avoid the injury.
(A) True
(B) False
Answer : (A)
41. Because of the harshness of the all-or-nothing contributory negligence rule, nearly all states
have now substituted the last clear chance doctrine for contributory negligence.
(A) True
(B) False
Answer : (B)
42. The "but for" test is useful when two or more forces, each of which is sufficient to bring about
the harm in question, are actively operating.
(A) True
(B) False
Answer : (B)
43. Some states have today merged the implied assumption of risk doctrine into their comparative
negligence systems.
(A) True
(B) False
Answer : (A)
(A) True
(B) False
Answer : (B)
45. While comparative negligence is generally not a defense in a strict liability case, contributory
negligence generally is a successful defense.
(A) True
(B) False
Answer : (B)
46. A number of states have abolished or modified the defense of implied assumption of risk.
(A) True
(B) False
Answer : (A)
(A) True
(B) False
Answer : (B)
48. Under the Second Restatement, a possessor of land must warn licensees of dangerous conditions
of which the possessor has knowledge and the licensees do not and which they are not likely to
discover.
(A) True
(B) False
Answer : (A)
49. A duty to act is imposed on those whose innocent conduct has injured another and left him
helpless and in danger of further harm.
(A) True
(B) False
Answer : (A)
50. There are no defenses available for strict liability; it is imposed absolutely.
(A) True
(B) False
Answer : (B)
MULTICHOICE
51. Mark is out sailing in his boat one evening when he hears a young girl crying for help in the
middle of the lake. Which of the following is true?
(A) Mark must help the girl or he will be liable for negligence.
(D) Mark must help the girl if he begins to rescue her and increases her danger.
Answer : (D)
52. By law, all apartment buildings in the state where Mary lives must have smoke alarms in the
ceilings. Mary suffers smoke inhalation because the smoke alarm in her apartment building was not
yet installed. To win a negligence action against the building owner, Mary would have to prove:
Answer : (C)
53. Which of the following is correct with respect to the reasonable person standard?
Answer : (D)
54. If Janice, while driving her car, negligently runs into Paul, a pedestrian who is carefully crossing
the street, Janice is liable for:
(A) physical injuries Paul sustains from the collision because Janice's negligent conduct proximately
caused harm to a legally protected interest.
(B) offensive contact if her side mirror brushes against Paul, even if there are no physical injuries to
him.
(C) offensive contact if her car touches Paul's coat, even if there is no damage to the coat.
Answer : (A)
55. The doctrine of res ipsa loquitur would permit the court to infer negligence in which of the
following situations?
(C) A patron of a restaurant slipped on a wet spot on the floor and hit her head on a chair.
Answer : (B)
56. Chris was driving a car with defective brakes very slowly down Fifth Avenue looking for a
parking place. Mindy jumped out into the street five feet in front of his car. Chris could not help but
hit her. What is Chris's best defense to the charge of negligence?
(B) He was not negligent since he did not have a statutory duty to keep his brakes in top condition.
(C) Mindy crossed in the middle of the street, which is against the law.
(D) He was lawfully seeking a parking place and did not see her jump out.
Answer : (C)
57. Henry was burning leaves in his backyard. One of the burning leaves was lifted by the wind into
Bob's yard next door. It landed on the lawnmower which exploded, setting fire to the wooden lawn
furniture. Henry's best argument against liability to Bob would be:
(A) the leaf was not a substantial factor in causing the damage.
(D) the damage was not caused by the leaf but by the gasoline.
Answer : (C)
58. An action for negligence consists of which of the following elements which the plaintiff must
prove?
(A) Injury.
Answer : (A)
59. Pat and Sally started a charcoal fire for Sally's backyard barbecue and left it uncovered. Then
Sally went into the kitchen to make hamburger patties. While Sally was inside, Pat backed up to
catch a football and hit the grill, knocking the coals onto his feet. In a pure comparative negligence
state, who is liable?
(B) Sally is liable for Pat's injuries in proportion to the degree of fault or negligence found against
her.
(D) Sally is liable for Pat's injuries only if Pat was more negligent than Sally.
Answer : (B)
60. Which of the following would not be considered an abnormally dangerous activity, subjecting the
person who carries it out to strict liability?
Answer : (B)
61. Cal sprayed pesticide on his crops in a very careful manner on a windless day. Nevertheless,
some of the pesticide spray fell on his neighbor's side of the fence and contaminated the cracked
corn for the chickens. The chickens died and the neighbor sues. What is the likely result?
(A) Cal is not liable because he was not negligent in his spraying operation.
(B) Cal is not liable because the neighbor assumed the risk of damage to the feed by placing it so
close to the fence.
(D) Cal is not liable for the damage because of contributory negligence.
Answer : (C)
62. If a statute is found to be applicable to a fact situation, then the courts will hold that an
unexcused violation of that statute which causes an injury to another is:
Answer : (C)
63. The legal doctrine upon which Justice Cardozo based his decision in the Palsgraf case is the
doctrine of:
(B) foreseeability.
Answer : (B)
64. Which of the following is/are considered in determining the application of the reasonable person
standard?
Answer : (D)
65. The rule which permits the jury to infer both negligent conduct and causation from the mere
occurrence of certain events is:
Answer : (B)
66. William, who is a waiter, is injured when an unopened bottle of cola explodes in his hand while
he is putting it into the restaurant's cooler. If William wants to sue the bottling company for his
injuries:
(A) he will lose, because it will be impossible for him to prove that the bottle was overpressurized by
the bottler.
(B) he will lose, because the bottling company has no duty to him.
(C) he will probably win if the court allows him to use the res ipsa loquitur doctrine.
Answer : (C)
67. Sarina goes to Marlin's Department Store to look for clothes. The store happens to be in the
process of remodeling, and there is a lot of clutter in the aisle. Sarina trips over the clutter and is
injured. Under the Second Restatement, Sarina's status with regard to the store is that of:
(A) licensee.
(D) trespasser.
Answer : (B)
68. As a general rule:
(A) the defenses available to intentional torts and negligence are interchangeable.
(B) if a plaintiff has established by a preponderance of the evidence all the required elements of a
negligence action, the plaintiff will automatically recover damages.
(C) any defense to an intentional tort is also available in an action for negligence.
(D) more defenses are available for intentional torts than are available in negligence cases.
Answer : (C)
69. A(n) __________ is a sudden, unexpected event calling for immediate action, that is considered
when determining whether conduct was reasonable in a negligence lawsuit.
(C) emergency.
Answer : (C)
70. The local supermarket has a large, glass front door which is well lighted and plainly visible.
Nelson, who is new in the neighborhood, mistook the glass for an open doorway and walked into it,
shattering the door and injuring himself. Under the Second Restatement, the store:
(B) is not liable to Nelson since the door was well lighted and plainly visible.
Answer : (B)
71. Stan doesn't like having neighborhood teenagers walk across his yard at night. He rigs an
animal trap on the path the teenagers usually use to cross his land. One night, Tim and his friends
are walking across the yard when Tim gets caught in the trap. He is taken to the hospital for his
injuries. Stan:
(A) has the right to strongly discourage anyone from trespassing, and Tim was a trespasser.
Answer : (C)
72. Seventeen-year-old Brice has just received his driver's license. He is driving a little too fast one
day and slams into the back of another car, which has just stopped for a stop sign. In most states:
(A) since Brice is engaging in an adult activity, he will be held to the same standard as an adult.
(B) since Brice is a minor, he will have no responsibility for his torts.
Answer : (A)
73. In determining the duty of care owed by a defendant using the reasonable person standard, the
court will consider which of the following factors?
(D) Both the existence of emergency conditions and also a physician's training and years of
experience.
Answer : (D)
74. Violation of a statute designed to protect underage, unlicensed drivers, as well as innocent third
parties, from the consequences of juvenile car theft and "joy riding," by prohibiting car owners from
leaving the keys in their car if the car is unattended, is likely to be characterized as:
Answer : (A)
75. The harshness of the contributory negligence doctrine has been mitigated by:
(D) both comparative negligence and the last clear change rule.
Answer : (D)
76. A form of strict liability applies to all except which of the following situations?
(B) A fireworks factory that blows up and injures townspeople and their property.
(D) A herd of goats that walk onto a neighbor's property and trample and eat the neighbor's roses.
Answer : (C)
(D) express voluntary assumption of risk and in some states comparative negligence.
Answer : (D)
78. In Soldano v. O'Daniels, the court re-examined the common-law rule of nonliability for not taking
affirmative action to save someone from peril. The court considered which of the following factors
with respect to imposing duties for affirmative action by third parties?
(A) The examination and balancing of intervening causes and physical capabilities.
(C) Moral blame attached to the defendant's conduct and the policy of preventing future harm.
Answer : (C)
79. Arnie negligently stopped his car on the highway. Beth, who was driving along, saw Arnie's car
in sufficient time to attempt to stop. However, Beth negligently put her foot on the accelerator
instead of the brake and ran into Arnie's car. In this case:
(A) Arnie's contributory negligence will prevent his recovery from Beth in all jurisdictions.
(B) Beth had the last clear chance to avoid the accident and will bear legal responsibility for it.
(D) because both parties were negligent, in a state that follows the pure comparative negligence
doctrine, both parties will share the liability for their injuries.
Answer : (D)
80. While driving his car five miles over the speed limit, Carl struck Darla, who was jaywalking
across the street. When the case came to trial, the jury determined that Carl was 40% negligent and
that Darla was 60% negligent. Darla's injuries are $10,000. If this accident occurred in a state
following the modified comparative negligence theory of recovery, Darla will:
Answer : (B)
81. Garnett, who was driving too fast for conditions, collided with a truck carrying explosives. The
truck was unmarked, so Garnett had no way of knowing what it contained. The collision caused an
explosion, which shattered glass in a building a block away. The glass injured Ida, who was working
inside the building. John, who was walking down the street near the site of the collision, was
seriously burned as a result of the explosion. In this case:
(C) both Ida and John are within the zone of danger of the collision.
Answer : (B)
(A) owe varying duties to entrants onto the land depending on their status.
(B) owe the same duty of reasonable care to all entrants on the land except for a category of
entrants called "flagrant trespassers."
(C) owe "flagrant trespassers" a duty of reasonable care, but owe others a duty to warn them of
dangerous activities and conditions of which the possessor has knowledge or reason to know and
which the entrant does not know and is unlikely to discover.
(D) have the duty of reasonable care only with regard to artificial conditions on the land that could
pose risks to entrants on the land.
Answer : (B)
Answer : (A)
84. Which of the following is a defense that a defendant could raise in an action based on strict
liability?
(A) The plaintiff negligently failed to observe a sign on a highway warning of blasting operations and
was injured from the operations.
(B) The owner of a car knowingly and voluntarily parked his vehicle in a blasting zone as a result of
which the car was damaged.
(C) A child played with a neighbor's pet raccoon which had escaped from its cage. The child teased
the pet and was bitten.
(D) All of these are valid defenses which would be successful if raised by the defendant.
Answer : (B)
85. A ninety-year-old patient walked away from a nursing home and wandered onto some nearby
railroad tracks. Once on the tracks, the patient stumbled and sprained his ankle. A few minutes later
a train approached. The engineer saw the man on the track and could have stopped, but the train's
brakes were defective. As a result, the train hit and killed the man. His family is suing the railroad
for negligence in a state that follows the contributory negligence doctrine. In this case,
(A) the patient has assumed the risk of wandering onto the railroad tracks.
(B) because the patient was contributorily negligent, the railroad has no liability.
(C) the train had the last clear chance to avoid the accident, so the patient's contributory negligence
does not bar his estate's recovery.
(D) the train's striking of the man was an intervening cause, so the railroad company was negligent.
Answer : (C)
86. In which of the following situations would a court be likely to find that the witness to the
situation had an affirmative duty to act?
(A) Where a pedestrian witnessed an auto accident in which one of the drivers was injured.
(B) Where an airline attendant witnessed one passenger threaten another passenger.
(C) Where the driver of a car saw a two-year-old toddler wandering in the middle of a busy street.
(D) All of these are situations where legally there is an affirmative duty to act.
Answer : (B)
87. Under the Second Restatement, the duty of a possessor of land to persons who come on the land
usually depends on whether those persons are:
(C) fiduciaries.
Answer : (A)
88. Which of the following are activities that give rise to strict liability?
Answer : (D)
89. A principal factor that the courts consider in determining limitations on the causal connection
between the defendant's negligence and the plaintiff's injury is:
Answer : (D)
ESSAY
90. Identify the elements a plaintiff must prove in an action for negligence.
Graders Info :
An action for negligence consists of the following five elements, each of which the plaintiff must
prove: (a) duty of care (that a legal duty required the defendant to conform to the standard of
conduct established for the protection of others); (b) breach of duty (that the defendant failed to
exercise reasonable care); (c) factual cause (that the defendant's failure to exercise reasonable care
in fact caused the harm the plaintiff sustained); (d) harm (that the harm sustained is of a type
protected against negligent conduct); and (e) scope of liability (that the harm sustained is within the
"scope of liability," also called "proximate cause").
91. What is the difference between contributory negligence and comparative negligence? Why have
so many states adopted comparative negligence?
Graders Info :
Contributory negligence is a failure of a plaintiff to exercise reasonable care and that legally causes
the plaintiff's harm. It is normally a complete bar to the plaintiff's recovery. Comparative negligence
is a more recent doctrine that allows a jury to apportion fault between parties. States have adopted
comparative negligence to avoid the harshness of the contributory negligence doctrine.
92. What activities give rise to strict liability and what defenses are available to strict liability?
Graders Info :
Strict liability, or liability without fault, arises from (a) performing abnormally dangerous activities,
(b) keeping animals, and (c) selling defective, unreasonably dangerous products. Abnormally
dangerous activities are those that (a) create a foreseeable and highly significant risk of physical
harm even when reasonable care is exercised by all actors and (b) are not a matter of common
usage. Examples include blasting, crop dusting, drilling for or refining oil in populated areas.
Trespassing animals or any action by a wild animal generally causes strict liability for the owner.
Merchant sellers and manufacturers who sell goods in a defective condition unreasonably dangerous
to the user or consumer are held strictly liable. Contributory negligence is not a defense to strict
liability. However, comparative negligence is available in some states for some types of strict
liability. Express voluntary assumption of risk is also a defense to strict liability.
Analyze the fact situation in terms of the elements that need to be proved in
a.
a negligence case.
Why did Mrs. Palsgraf lose the case? What in the fact situation makes it
b.
difficult to establish a prima facie case of negligence?
Graders Info :
94. What is the reasonable person standard? How is it applied to each of the following types of
people?
a. Children
b. Persons with physical disabilities
c. Persons who are mentally retarded
Professional people with advanced degrees and training, such as doctors,
d.
lawyers, and accountants
e. Persons acting in emergency situations
f. Persons who violate statutory duties
Graders Info :
The "reasonable person" is a fictitious individual who is always careful and prudent and never
negligent. The reasonable person is a standard of conduct which is external and objective.
Children must conform to the standard of a reasonable person of like age,
a.
intelligence, and experience under like circumstances.
b. The standard is that of a reasonable person under like disability.
A mentally retarded person is held to the standard of conduct of a reasonable
c.
person who is NOT mentally deficient.
Persons who practice a profession are held to the same care and skill
d.
normally possessed by members of their profession
e. Emergencies are taken into consideration.
If the statute is found to be applicable, the majority of courts hold that an
f. unexcused violation is negligence per se; that is, it is conclusive on the issue
of negligent conduct.
95. In responding to the previous question (Question 5), think about and then discuss why in your
analysis the reasonable standard of care differs for the above listed categories of individuals. Is
there any logic on which to base these differences because of societal need and expectations? Does
justice demand a different result? Why would the courts make these distinctions?
Graders Info :
The courts have not been merely arbitrary in coming to the distinctions. The distinctions are based
on what a reasonable person can expect from such individuals, what usually occurs in the majority of
situations, justice, and the perennial fear the courts have of being flooded by cases that have no
solution.
Children vary in their capabilities, responsibilities, and what their parents will
allow them to do. Third parties dealing with children who may be negligent
deserve some protection. However, minor children cannot be held to the same
a. standards as adults. Generally, the third person is aware of dealing with a
child and can respond accordingly. In the case of a child performing an adult
activity, a third person's expectation can understandably be that the child
should behave as an adult would.
People who deal with others with physical disabilities are generally put on
notice by the physical appearance of the disabled person that they are indeed
dealing with someone whose physical capabilities will be different from those
who are not physically challenged. Therefore, parties dealing with physically
challenged people can react accordingly to protect themselves from harm or
b.
at least make adjustments in their actions. Example: If you left your child at a
day care with a caregiver who was confined to a wheelchair, you would be on
notice, assume the risk, that without taking additional precautions, the
provider may not be able to do some physical activities that may be necessary
in some emergencies.
Persons who are mentally retarded. In contrast to the above analysis, the fact
that persons who are mentally retarded or otherwise mentally impaired may
not be discernible. Therefore, persons dealing with them may not be on notice
of their capabilities. The courts are concerned also about the floodgates
c. problem: People may use mental impairment as a defense in the extreme, i.e.,
"My I.Q. is a few points below what is average for childcare providers in this
country and so I should be excused from all liability," or "I was under a great
deal of stress and suffering from neurosis and so I should have a lower
standard of care ascribed to me."
Professional people with advanced degrees. It would be unjust, a windfall of
d. excusable neglect to ascribe to these people a standard of care lower than
their actual knowledge.
Persons acting in emergency situations. Emergency situations bring to bear
their own set of factual circumstances that call for immediate judgment of the
actions involved. It would be unjust to ignore the unique pressures, factual
e.
circumstances, and human differences in emergencies and hold people acting
in such situations to the same standard of care as people in calm, reasonable
circumstances.
Persons who violate statutory duties. We are all held to be knowledgeable of
the law, whether we are actually aware of a particular law or not. If we were
not, people could use as an excuse that they did not know of a law. Once
again, the floodgates problem would raise its head. Also, courts generally
defer to legislative judgment in creating statutes. If the legislature deemed it
f.
of societal value to promulgate a particular statute, then the courts are bound
to enforce it. These kinds of statutes are designed to avoid the problems of
proof of standard of care and breach of duty. The harm is either of such a
serious nature, or so prevalent, that the legislature has seen fit to treat the
problem with a negligence per se statute.
96. Jack is a trucker who makes his living moving modular homes. This is a dangerous business in
that the portions of the houses, when on the truck, are wider than the road lanes. Also, Jack
frequently has to travel much more slowly than the other vehicles on the road. One day Jack, on his
way to Atlanta with a modular home in tow, found himself approaching two trucks coming from the
opposite direction with the words "High Museum Exhibits" on the truck panels. When Jack swerves
to avoid a bicyclist, the High Museum truck runs off the road and tumbles down an embankment. No
one is harmed, but the painting exhibit being transported is damaged. Discuss the various theories
of negligence that might be applied here and why they would be appropriate.
Graders Info :
The first question that needs to be addressed is whether the plaintiff would be successful using the
strict liability theory or if simple negligence would be appropriate. In discussing strict liability the
student must articulate that Jack was involved in an abnormally dangerous activity. The elements of
what constitutes an abnormally dangerous activity would need to be discussed. The student should
discuss (a) the high degree of risk or harm involved and (b) that the activity is not common.
In discussing simple negligence the question becomes whether meeting the museum exhibit truck
was foreseeable and whether the museum assumes any risk. The bicyclist may be discussed in the
context of whether he would be considered a superseding cause.
97. Robin owns a dog. If there are no applicable statutes, what is her liability for damage if her dog
digs up her neighbor's prize roses? Would it make any difference if the animal that destroys her
neighbor's flower garden is the wild orangutan she owns?
Graders Info :
Keepers of animals are generally held strictly liable for harm their animals cause by trespassing on
the property of another. However, keepers of dogs and cats are liable only for negligence unless a
statute or ordinance imposes strict liability. Therefore, Robin would be liable if she had been
negligent in allowing her dog to damage her neighbor's flowers, but would be strictly liable for any
damage her trespassing orangutan causes.
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Repeat the same procedure the next day. Vary the introduction
somewhat, like this: “I want you to do this just as you did yesterday,
except that I want this margin over here on the right side to be on a
straight line. Wait till I take this ruler and show you.” Lay the ruler
lengthwise of the sheet you want the pupil to write on, so that you
can take your lead pencil and make a line about an inch from the
right side of the page. “Now, when you have written out to this line
here, then stop and begin on the next line like this:” (show the child
how you write a sentence and begin on the next line). It would be
well if the sentence which you use as an example were to be one that
would express some familiar thought about the child’s immediate
interests, such as his favorite sport. Leave the child’s desk as you
were advised to leave it the day before and also return as before and
approve that which the pupil does well, either saying absolutely
nothing about the careless parts or suggest incidently that the pupil
could help such and such a part by doing this or that thing to it. Be
sure to end your remarks by some such expression as, “That’s good,”
or “That’s fine.”
(3) Learning to Draw. Not infrequently it Lower Grades
happens that a pupil comes into school who
has never learned to draw and who, feeling his inability to
accomplish the task set for him in the drawing lesson, refuses to
make any attempt to do so. Especially is this true if the picture is to
be drawn from imagination. In such a case it is best to begin with
copying. When this art is learned, drawing from imagination will be a
comparatively easy step.
For example, choose a very simple picture for the child to
reproduce on another piece of paper. It is a good plan for a teacher to
have at least a dozen or more pictures in one drawer of his desk all
the time, because many pupils like to draw and copy pictures and it
is an excellent way to get them interested in other work. Present the
picture of some ordinary scene. Tell the pupil before he begins that
you are going to make a collection of pictures which your pupils
draw. The picture need not have much life in it to start with, but right
here we make use of the child’s imagination to wonderful advantage.
Suppose the picture, which you have in hand, shows a tree or two, a
house, a couple of bushes or any kind of natural objects whatsoever.
Talk to the pupil in this fashion, pointing to different parts of the
picture with your pencil and have your face near the picture,
indicating interest and enthusiasm as you talk: “Now, right behind
this tree here, I want you to draw a boy, sticking his head out from
behind the tree. And right over here, where I make this little cross
mark, I want you to draw a little girl hiding behind this bush. We will
suppose they are playing ‘Hide and Seek.’ Right over here, between
this tree and the house, draw a boy’s hat. Maybe he has lost it while
he was running to hide. You know how to make a hat. Just like this:”
(draw a very simple hat, merely making a straight line and a semi-
circle connecting two points in it.) “Maybe you can draw a better one
than that. I’ll come back to your desk pretty soon and see what kind
of a hat you drew and also that little boy sticking his head out from
behind the tree. Is your pencil sharp enough?”
The child will say that his pencil is all right. Then leave him at once
and in ten or fifteen minutes return. Go back with this one thought in
mind, that you will say nothing at all except that which is
complimentary. For example, say, “Well, I should say you can draw. I
believe you made a better hat than I did. Now this afternoon, I am
going to give you something else to draw. Maybe a pony with a boy
on his back and a girl riding in the pony cart. You are going to be
good at drawing things for me, I know. I want to keep all of your
drawings after you have finished them for me.”
In case the child should interrupt and ask to draw the pony right
away instead of waiting until afternoon, answer by saying, “I will
have the picture ready for you after dinner and then I will bring it to
you.”
Of course, it is not necessary to use the exact words we have
suggested, or to use the same pictures or even to use pictures at all.
The important point is to offer something that is at once interesting
in order to get the pupil started in drawing. Do not insist much upon
regular lessons during the first day or two in which your chief
problem is to get the pupil’s confidence.
After the child has learned to like to do the things which you
suggest present more difficult, or even purely imaginative, subjects
for drawing.
Use the same method in getting the child to take an interest in
other subjects than drawing—that is, give him very small tasks, then
approve and compliment him on his ability. This will bring good
results with any pupil who is normal.
As a transition step between mere copying and drawing wholly
from the imagination, and also to give the timid child confidence
enough to come to the blackboard to draw in the presence of other
children, the following might be tried.
Having the confidence of the little pupil, go to his desk just before
school closes in the evening and say, “I would like for you to stay just
a moment after school. I want to tell you something.”
After most of the pupils have marched out, return to his desk,
begin to talk enthusiastically about a picture which you have. Tell
him to follow you and you will try to draw it. Then after reaching the
blackboard and picking up a piece of crayon, say, “Now, I am going
to draw this man’s face and I want you to draw his eyes.” Let it take
you about a minute to draw the outline of the man’s face, talking all
the time about how well you like to draw pictures, then say, “Now
let’s see if you can draw his eyes. Make a mark right there” (point to a
spot). “Good! Now draw his other eye. Good! Now his ear. Make a
mark right here” (point to a spot). “My, that’s fine. See, what a fine
man you drew.” Start to leave the blackboard and say, “I’m going to
have you draw for me again.”
Repeat this process every day until you feel sure that the child will
go to the blackboard and work in the presence of yourself and the
class.
DIVISION VII
Only through the gateway of personal experience does the child enter into the
larger understanding of the thought and achievement of humanity.
CASES ARISING OUT OF THE SOCIAL
INSTINCTS
CONSTRUCTIVE TREATMENT
There are occasions when a definite issue for the mastery occurs in
the school-room, and this was one of them. Miss Nelson had no right
to break her promise to a docile and obedient child, and reinforce the
habitual selfishness of a spoiled one. She should have insisted that
Karen take her turn with the rest, and if Karen had stormed it would
have given her a good opportunity to show her that her usual
methods would not work in school. The angry storming of a spoiled
child is usually done with an alert eye to the effect produced on the
audience; therefore, if Karen had wept and wailed, she should have
been carried out into the hall, where she might have been left in
lonely state to recover her good temper. Usually one or two such
trials convince a spoiled child that he has met his match, and if such
children are followed by tactful guidance, and especially if attention
can be diverted away from themselves, the worst-spoiled children
can in time be thoroughly socialized.
COMMENTS
ILLUSTRATION (KINDERGARTEN)
CONSTRUCTIVE TREATMENT
When children are not supplied with the necessary equipment for
their work and are too poor to buy for themselves make an appeal to
the board of education asking them to purchase the material needed,
which material should be considered the property of the school and
left there from year to year. Most states require that the school
furnish books and equipment for all who are unable to buy them.
Show by your own example that poor people are just as desirable
for companions as rich ones, other things being equal. See to it that
the children of poor parents be made to forget, while at school, that
they are different from others. See to it that democracy reigns on the
playground.
Supervise all play.
Do not foster the borrowing habit.
COMMENTS
CONSTRUCTIVE TREATMENT
Miss Bush was too superficial in her original treatment of this case.
She had had ample time to think out a workable plan that would
have caused no friction.
After having all food removed from the desks she might have asked
the pupils to find appropriate seats in which to eat their lunches.
After lunch time she should have led the way to the playground
where all else than play would be easily forgotten.
From time to time short talks on manners should be given to the
whole school.
COMMENTS