ADMS 2610 Chapter Notes - Chapter 5: Reasonable Person, Contributory Negligence, Res Ipsa Loquitur

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3 Jan 2020

School

York University

Department

Administrative Studies

Course

ADMS 2610

Professor

William Pomerantz

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Document Summary

Unintentional torts can take two forms: negligence and recklessness. Tort of negligence: usually an omission on someone"s part, duty to refrain from acting negatively, no duty to act in a certain way (positive duty) These cases have something in common: someone owes a duty not to injure, There is an act or omission in breach of that duty, and: an injury is suffered as a direct result of that breach. Requirements: defendant owes a plaintiff a duty not to injure, defendant"s constitute a breach of that duty, plaintiff suffers an injury as a reasonably foreseeable result (causation) of the defendant"s action. The basic premise upon which tort liability is founded is that individuals and corporations living in a civilized society should not intentionally cause injury to one another, or to the property of others. The duty exists when a legal right exists. Standard of care and breach: reasonable person- the standard of care used to measure the acts of negligence.

Related Questions

4â28. Multiple Choice Questions
Select the best answer for each of the following questions and explain the reasons for your
choice.
a. If a CPA performs an audit recklessly, the CPA will be liable to third parties who were
unknown and not foreseeable to the CPA for:
(1) Strict liability for all damages incurred.
(2) Gross negligence.

(3) Either ordinary or gross negligence.
(4) Breach of contract.
b. Which of the following approaches to auditorsâ liability is least desirable from the CPAâs
perspective?
(1) The Ultramares approach.
(2) The Rosenblum approach.
(3) The Restatement of Torts approach.
(4) The Foreseen User approach.
c. In cases of breach of contract, plaintiffs generally have to prove all of the following,
except:
(1) The CPAs had a duty.
(2) The CPAs made a false statement.
(3) The client incurred losses related to the CPAsâ performance.
(4) The CPAs breached their duty.
d. If the CPAs provided negligent tax advice to a public company, the client would bring suit
under:
(1) The Securities Act of 1933.
(2) The Securities Exchange Act of 1934.
(3) The federal income tax law.
(4) Common law.
e. Which of the following cases reaffi rmed the principles in the Ultramares case?
(1) Credit Alliance Corp. v. Arthur Andersen & Co.
(2) Rosenblum v. Adler.
(3) Ernst & Ernst v. Hochfelder.
(4) Escott v. BarChris Construction Corporation.
f. Under common law, the CPAs who were negligent may mitigate some damages to a client
by proving:
(1) Contributory negligence.
(2) The CPAsâ fee was not material.
(3) The CPAs were not competent to accept the engagement.
(4) The CPAsâ negligence was caused by the fact that they had too much work.
g. Under the Securities and Exchange Act of 1934, auditors and other defendants are faced
with:
(1) Joint liability.
(2) Joint and several liability.
(3) Proportionate liability.
(4) Limited liability.
h. A CPA issued an unqualifi ed opinion on the fi nancial statements of a company that
sold common stock in a public offering subject to the Securities Act of 1933. Based on
a misstatement in the fi nancial statements, the CPA is being sued by an investor who
purchased shares of this public offering. Which of the following represents a viable
defense?
(1) The investor has not proved fraud or negligence by the CPA.
(2) The investor did not actually rely upon the false statement.
(3) The CPA detected the false statement after the audit date.
(4) The false statement is immaterial in the overall context of the fi nancial statements.
i. Which of the following elements is most frequently necessary to hold a CPA liable to a
client?
(1) Acted with scienter or guilty knowledge.
(2) Was not independent of the client.
(3) Failed to exercise due care.
(4) Did not use an engagement letter.

j. Which statement best expresses the factors that purchasers of securities registered under
the Securities Act of 1933 need to prove to recover losses from the auditors?
(1) The purchasers of securities must prove ordinary negligence by the auditors and reliance
on the audited fi nancial statements.
(2) The purchasers of securities must prove that the fi nancial statements were misleading
and that they relied on them to purchase the securities.
(3) The purchasers of securities must prove that the fi nancial statements were misleading;
then, the burden of proof is shifted to the auditors to show that the audit was
performed with âdue diligence.â
(4) The purchasers of securities must prove that the fi nancial statements were misleading
and the auditors were negligent.
k. The most signifi cant result of the Continental Vending case was that it:
(1) Created a more general awareness of the possibility of auditor criminal prosecution.
(2) Extended the auditorâs responsibility to all information included in registration
statements.
(3) Defi ned the CPAâs responsibilities for unaudited fi nancial statements.
(4) Established a precedent for auditors being held liable to third parties under common
law for ordinary negligence.
l. The 1136 Tenantsâ case was important because of its emphasis upon the legal liability of
the CPA when associated with:
(1) A review of annual statements.
(2) Unaudited fi nancial statements.
(3) An audit resulting in a disclaimer of opinion.
(4) Letters for underwriters.

pucebuffalo725

FACTS In the spring of 2001, Kitsmiller purchased a house in VanZandt County to use as rental property. In mid-June, he hired B& H Shaw Company, Inc. (B & H) to install a replacementseptic tank in the back yard. The septic tank was located about twoor three feet from a concrete stoop at the back door of the garage.B & H mounded dirt over the septic tank and the lateral linesgoing out from it upon completion. Sometime after B & Hinstalled the septic tank, Kitsmiller smoothed out the mounds ofdirt over the septic tank and lateral lines. Kitsmiller then leasedthe property to Moore and his wife on July 27. Kitsmiller testifiedthat he viewed the back yard about a week or ten days prior toleasing the property to the Moores and stated that the dirt aroundthe septic system looked firm.
On August 7, the Moores moved in. On August 11, Moore and his wifewent into the back yard for the first time, and as he stepped offthe stoop, he was unable to see the ground and could only see hiswife and the bag of trash in his left arm. His wife testified thatthe ground looked flat. Moore testified that he had only taken afew steps off the stoop when his left leg sank into a hole, causinghim to fall forward into his wife. As he tried to steady himselfwith his right foot, it hung and then sank, causing him to fallbackward on his head and back. Moore testified that the injury tohis back required surgery and affected his ability to earn aliving.
Moore filed suit against Kitsmiller and B & H. He sought dam-ages for past and future pain and suffering, past and future mentalanguish, past and future physical impairment, and past and futureloss of earning capacity. In their answers to Mooreâs suit, bothKitsmiller and B & H pleaded the affirmative defense ofcontribu- tory negligence.
During the jury trial, Moore testified Kitsmiller should havenotified him where the septic tank and lateral lines werelocated
and that the dirt should have remained mounded over the tank andlines. Martin, an on-site septic tank complaint investigator forboth the Texas Commission on Environmental Quality and Van ZandtCounty, testified that dirt should have been mounded over the sep-tic tank and lateral lines, so that when the dirt settled, therewould be no holes in the ground around the septic tank or laterallines.
The jury determined that (1) both Kitsmiller and Moore werenegligent, but B & H was not; (2) Kitsmiller was 51 percentnegli- gent and Moore was 49 percent negligent; and (3) Moore wasentitled to $210,000 in damages. On September 29, 2004, the trialcourt entered a judgment in favor of Moore and against Kitsmillerin the amount of $210,000 plus interest and costs. Applying com-parative negligence, the trial court entered a modified final judg-ment on November 1, 2004, awarding Moore $107,100 plus interest andcosts based upon Mooreâs contributory negligence. Moore appealedall issues involving his contributory negligence.
DECISION The judgment of the trial court is affirmed.
OPINION Contributory negligence contemplates an injured per- sonâsfailure to use ordinary care regarding his or her own safety. Thisaffirmative defense requires proof that the plaintiff was negli-gent and that the plaintiffâs negligence proximately caused his orher injuries. Negligence requires proof of proximate cause. Proxi-mate cause requires proof of both cause in fact and foreseeability.The test for cause in fact is whether the negligent act or omissionwas a substantial factor in bringing about an injury without whichthe harm would not have occurred. Foreseeability requires that aperson of ordinary intelligence should have anticipated the dangercreated by a negligent act or omission.
Because comparative responsibility involves measuring the partyâscomparative fault in causing the plaintiffâs injuries, it
requires a preliminary finding that the plaintiff was in fact con-tributorily negligent. The standards and tests for determiningcontributory negligence ordinarily are the same as those for deter-mining negligence. The burden of proof on the whole case is on theplaintiff. However, the burden of proof is on the defendant toprove the defense contributory negligence by a preponderance of theevidence.
The trier of fact may draw reasonable and logical inferences fromthe evidence. It is within the province of the jury to draw onereasonable inference from the evidence although another inferencecould have been made.
Moore testified that when he stepped off the stoop into the backyard for the first time on August 11, 2001, he could only see hiswife and the plastic bag of trash he was carrying in his left hand.The jury was allowed to draw an inference from this evi- dence thatMoore was not watching where he was walking. An individual mustkeep a proper lookout where he is walking, and a jury is allowed tomake a reasonable inference that failure to do so
was the proximate cause of his injuries. It was reasonable for thejury to make an inference from Mooreâs testimony that his failureto keep a proper lookout where he was walking contributed to theoccurrence.
Moore contends that the only reasonable inference the jury couldhave made was that, even if he had been watching where he waswalking, he would not have been able to avoid stepping in the holesbecause they were not visible to the naked eye. The jury could havemade that inference, but chose not to do so. Thus the jury made areasonable inference from the evidence in finding Moorecontributorily negligent.
INTERPRETATION In cases in which both the plaintiff and defendantare negligent, under comparative negligence the law apportionsdamages between the parties in proportion to the degree of fault ornegligence found against them.

If a plaintiff meets all of the requirements for a negligenceclaim, it does not necessarily mean that the plaintiff willautomatically win their lawsuit. There are certain defensesavailable to the defendant. Some of those defenses are: (1)contributory negligence; (2) pure comparative negligence; and (3)modified comparative negligence (explained on pages 152-54 ofText). These three defenses were created to protect the defendantwhen the plaintiff may have been negligent in some way. Please notethat in states that follow only "contributory negligence" it meansthat the plaintiff receives nothing if he/she is found even 1%negligent in the lawsuit (page 152).

First, please discuss whether you agree or disagreewith having these three types of defenses in a negligencelawsuit.

Next, assume for the purposes of this question thatyou do agree with having these three defenses, which of these threedefenses do you believe is the most equitable to both the plaintiffand the defendant?

Lastly, do you agree with the appellate court'sdecision affirming the lower court in Moore v. Kitsmiller (p.153-54) finding that the plaintiff was 49% negligent? Why or whynot? Please note that this case was a comparative negligence caseas the plaintiff's overall recovery was reduced from $210,000 to$107,100.

Please separate out and fully explain all of youranswers. In your third answer, you should be discussingthe specifics of the case in reaching yourconclusion.

Question 1

You are president of ACME Enterprises. Every year you have to pay a federally imposed fee for your business. This statute arises from a statute that was previously passed by the United States Congress. Being very "anti-tax" you decide one year that you are tired of paying the fee and that you want to get the fee eliminated. However, you do believe that the fee is constitutional. Which branch of government could pass a law which could eliminate this fee for you?

Judicial B. Legislative C. Executive D. Municipal

Question 2

Which of the following statements is not true?

Bob, a resident of New Jersey, sues Ed, a resident of Florida, for $100,000 over a real estate deal. Bob must bring his suit in a Florida court. B. The conflict of laws may guide a federal court in deciding which state's laws to apply in a case. C. Federal courts have exclusive jurisdiction over bankruptcy cases. D. You are not required to be represented by an attorney in small claims court

Question 3

You were convicted of the federal crime of possession of cocaine with intent to distribute across interstate lines. Your case was tried in the United States District Court for the Southern District of West Virginia. Now, you wish to appeal your case to get your conviction overturned. To which body should you first appeal your case?

United States Supreme Court B. 4^th Circuit Court of Appeals. C. United States Magistrate Court D WV Supreme Court

Question 4

Venue concerns:

Whether a federal court has jurisdiction B. The most appropriate court for the action to be brought within a particular state or federal jurisdiction C. Whether a state court has jurisdiction. Whether a defendant has properly served with process

Question 5

The decision of a state court can never be appealed to the U.S. Supreme Court.

True or False

Question Six

A rule of law enabling the defendant to win even if all of plaintiffâs allegations are true is a

Counterclaim B. Deposition C. Judgement N.O.V. D. Affirmative Defense

Question 7

Johnson is a creditor of Barnes. Johnson wants to file a petition to have Barnes declared bankrupt. Which of the following statements is true?

Johnson can file his petition in either state or federal court B. Johnson should file his petition in US. District court C. Only a federal bankruptcy can hear a bankruptcy case D. bankruptcy cases can be heard in federal tax court

Question 8

Which of the following is a type of alternative dispute resolution that is binding on the parties?

Mediation B. Non-binding arbitration C. Binding arbitration D. Summary jury trial

Question 9

A writ of certiorari is the most common way to appeal a case to the Supreme Court.

True Or False

Question 10

A written record of the entire trial proceedings including the testimony of all the witnesses and any discussions between the judge and the attorneys is called a:

Treatise B. Citation C. Brief D. Transcript

Question 11

Which of the following Alternative Dispute Resolution processes can result in a decision that, under most circumstances, can't be appealed to another organization?

Binding Arbitration B. Non-binding Arbitration C. Mediation D. Mini-trial E. A & C F. None of the above

Question 12

The decision of a mediator is binding upon the parties.

True or False

Question 13 A new claim stating that plaintiff owes defendant damages because of harm resulting from the incident alleged in the complaint is a(n):

Affirmative defense B. Cross-claim C. Counterclaim D. Dissenting opinion

Question 14

Federal question jurisdiction:

A type of jurisdiction possessed by state trial courts B. Is the most common form of U.S. supreme court jurisdiction C. requires that the amount in controversy be at least $10,000 D. is jurisdiction over questions arising under federal laws, treaties, and in the U.S. constitution

Question 15

The primary way a case can be appealed to the West Virginia Supreme Court is through filing a document referred to as a:

Writ of certiorari B. writ of habeas corpus C. writ of quo warranto D. writ of mamdamus

Question 16

Which of the following is NOT true of the appellate procedure?

The appellate court hears witnesses and fathers new evidence B. A transcript of the trial must be sent to the appeals court C. The appealing party must show that material errors occurred in the trial D. The appeals court may reverse and remand the decision

Question 17

If P sues D, and D wants to allege that P's own negligence caused her injury, D should allege this in:

The complaint B. The answer C. The reply D. The counterclaim

Question 18

Uncle Jesse wants to sue Cletus Hogg (Uncle Jesse's neighbor) for trespassing on Uncle Jesse's land and for causing $50,000 worth of damage to Uncle Jesse's land. Both Uncle Jesse and Cletus live in Jackson County, West Virginia. Uncle Jesse comes to the law office you work for and your supervising attorney concludes that Uncle Jesse's case can take place in state court in West Virginia. What court should your law firm file the complaint in?

Jackson county superior court B. Jackson county circuit court of appeals C. United states district court in the southern district of WV D. Jackson county circuit court E. 4^th court of appeals

Question 19

Cases heard in the federal courts must involve either a federal question or situations in which there is diversity of citizenship between the parties.

True or False

Question 20

In the American legal system, a judge cannot overturn a jury verdict.

True or False

Question 21

A U.S. Court of Appeals is empowered to:

Hear witnesses and determine facts B. Hear only patent, copyright, and trademark appeals C. Review legal conclusions reached by lower federal courts and administrative agencies D. Make findings of fact

Question 22

A mini-trial is conducted under the supervision of the court.

True or False

Question 23

Eve attempts suicide by locking herself inside the trunk of her car. Someone discovers Eve after several days. She is still alive. Eve sues the manufacturer of her car for a large amount of money because it did not provide for a latch inside the trunk. Which of the following may be the first step that the car manufacturer would want to make in this case?

Make a motion to dismiss the case B. Make a motion for a directed verdict C. Make a motion of judgement n.o.v D. Take the case to small claims court

Question 24

Which of the following is NOT true of trials?

Preponderance of evidence is the standard used in civil trials B. proof beyond a reasonable doubt is the standard used in criminal trials C. The state can make a motion for judgement notwithstanding the verdict when the defendant is acquitted in a criminal trial D. a directed verdict may be granted in a civil case if the plaintiffâs evidence is not sufficient to support her allegations

Question 25

You sued your brother in Kanawha County Circuit Court because he hit you with his car in Charleston, West Virginia and caused you to become partially paralyzed on the left side of your body. This civil law case does not involve any federal issues or law; the case is purely a state law case and it involves about $500,000 in damages. The case was tried in a state court in Charleston and your brother lost. Your brother now wants to appeal his case to try to get the jury verdict overturned. To what organization should your brother first try to appeal his case?

United States Supreme Court B. West Virginia Supreme Court C. Kanawha County Circuit Court D. Kanawha County Family Court E. West Virginia Legislature

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ADMS 2610 Chapter Notes - Chapter 5: Reasonable Person, Contributory Negligence, Res Ipsa Loquitur

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